Adeel A. Mangi (admitted pro hac vice Michael F. Buchanan ... · Adeel A. Mangi (admitted pro hac vice) Michael F. Buchanan (NJ Bar #049041992) ... No. 16-cv-1369 (MAS) (LHG) Motion

Adeel A. Mangi (admitted pro hac vice)Michael F. Buchanan (NJ Bar #049041992)Muhammad U. Faridi (admitted pro hac vice)Alejandro H. Cruz (admitted pro hac vice)Diana M. Conner (admitted pro hac vice)Paul D. Swanson (admitted pro hac vice)PATTERSON BELKNAP WEBB & TYLER LLP1133 Avenue of the AmericasNew York, New York 10036Telephone: (212) 336-2000Facsimile: (212) 336-2222

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEW JERSEY

THE ISLAMIC SOCIETY OF BASKING RIDGEand MOHAMMAD ALI CHAUDRY,

Plaintiffs,

v.

TOWNSHIP OF BERNARDS, et al.,

Defendants.

No. 16-cv-1369 (MAS) (LHG)

Motion Day: June 6, 2016

ORAL ARGUMENT REQUESTED

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OFTHEIR MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS

8820169

Case 3:16-cv-01369-MAS-LHG Document 30 Filed 05/06/16 Page 1 of 32 PageID: 372

TABLE OF CONTENTSPage

i

PRELIMINARY STATEMENT ..................................................................................................1

FACTS ADMITTED BY DEFENDANTS...................................................................................3

A. ISBR Proposed to Build a Mosque with 50 Parking Spaces ...................................3

B. Defendants Created a New Parking Standard for ISBR Because It Is anIslamic Congregation ...............................................................................................5

C. The Planning Board Has Never Applied the Standards Deployed forISBR’s Application to Any Other Houses of Worship..........................................10

D. The Planning Board’s Parking Determination ImpactedCritical Aspects of ISBR’s Application.................................................................11

LEGAL STANDARD ..................................................................................................................12

ARGUMENT................................................................................................................................13

I. The Planning Board’s Determination of ISBR’s Parking RequirementViolated RLUIPA’s Non-Discrimination Provision......................................................13

A. Religious Distinctions Violate RLUIPA’s Non-DiscriminationProvision ................................................................................................................13

B. The Planning Board’s Religious Discrimination Was Explicit andIs Admitted.............................................................................................................16

C. Defendants Admit That the Planning Board Treated Other Houses ofWorship Differently and Better Than ISBR ..........................................................18

II. The Parking Ordinance Is Unconstitutionally Vague ..................................................19

A. The Parking Ordinance Is Unconstitutional Underthe U.S. Constitution..............................................................................................19

B. The Parking Ordinance Is Unconstitutional Underthe New Jersey Constitution ..................................................................................23

C. The Court Should Excise Only the UnconstitutionallyVague Provision.....................................................................................................26

CONCLUSION ............................................................................................................................27


TABLE OF AUTHORITIES

Page

ii

Cases

Adhi Paraskthi Charitable v. Twp. of W. Pikeland,721 F. Supp. 2d 361 (E.D. Pa. 2010) ...........................................................................14, 15, 16

Al Falah Ctr. v. Bridgewater,No. 11-cv-2397, 2013 U.S. Dist. LEXIS 190076 (D.N.J. Sept. 30, 2013) ........................14, 16

Associated Land & Inv. Corp. v. City of Lyndhurst,154 N.E.2d 435 (Ohio 1958)..............................................................................................25, 26

Berwick Area Landlord Ass’n v. Borough of Berwick,No. 07-cv-316, 2007 U.S. Dist. LEXIS 51207 (M.D. Pa. July 16, 2007) ...............................22

Buck v. Hampton Twp. Sch. Dist.,452 F.3d 256 (3d Cir. 2006).....................................................................................................13

In re Burlington Coat Factory Sec. Litig.,114 F.3d 1410 (3d Cir. 1997).....................................................................................................8

Bykofsky v. Middletown,401 F. Supp. 1242 (M.D. Pa. 1975) .........................................................................................22

Chabad Lubavitch of Litchfield Cnty., Inc. v. Litchfield Historic Dist. Comm’n,768 F.3d 183 (2d Cir. 2014)...............................................................................................14, 18

Church of Lukumi Babalu Aye v. City of Hialeah,508 U.S. 520 (1993)...........................................................................................................14, 18

City of Chi. v. Morales,527 U.S. 41 (1999)...................................................................................................................20

Cmtys. for Equity v. Mich. High Sch. Ath. Ass’n,459 F.3d 676 (6th Cir. 2006) ...................................................................................................15

Cunney v. Bd. of Trs. of Grand View,660 F.3d 612 (2d Cir. 2011)...............................................................................................20, 21

Cutter v. Wilkinson,544 U.S. 709 (2005).................................................................................................................13

Damurjian v. Bd. of Adjustment,299 N.J. Super. 84 (N.J. App. Div. 1997)....................................................................23, 24, 26

Diocese of Metuchen v. Twp. of Piscataway,252 N.J. Super. 525 (N.J. Law Div. 1991).........................................................................24, 26


TABLE OF AUTHORITIES(continued)

Page(s)

iii

Fowler v. R.I.,345 U.S. 67 (1953)...................................................................................................................15

Grayned v. City of Rockford,408 U.S. 104 (1972).................................................................................................................20

Hassan v. City of New York,804 F.3d 277 (3d Cir. 2015)...............................................................................................14, 15

Hoffman Estates v. Flipside,455 U.S. 489 (1982).................................................................................................................22

Holt v. Hobbs,135 S. Ct. 853 (2015)...............................................................................................................14

Jablonski v. Pan Am. World Airways, Inc.,863 F.2d 289 (3d Cir. 1988).....................................................................................................13

Janney Montgomery Scott, Inc. v. Shepard Niles, Inc.,11 F.3d 399 (3d Cir. 1993).......................................................................................................13

King v. Baldino,648 F. Supp. 2d 609 (D. Del. 2009).........................................................................................12

Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch,510 F.3d 253 (3d Cir. 2007)...............................................................................................15, 16

Lionshead Woods Corp. v. Kaplan Bros.,250 N.J. Super. 545 (N.J. Law Div. 1991)...............................................................................23

MAG Realty v. City of Gloucester City,No. 10-cv-988, 2010 U.S. Dist. LEXIS 82035 (D.N.J. Aug. 12, 2010) ..................................22

Maplewood v. Tannenhaus,64 N.J. Super. 80 (N.J. App. Div. 1960)..................................................................................23

Midrash Sephardi, Inc. v. Town of Surfside,366 F.3d 1214 (11th Cir. 2004) ...............................................................................................14

Morristown Rd. Assocs. v. Borough of Bernardsville,163 N.J. Super. 58 (N.J. Law Div. 1978)...........................................................................23, 25

N.J. Shore Builders Ass’n v. Twp. of Jackson,No. A-2507-05T5, 2007 N.J. Super. Unpub. LEXIS 2987(N.J. App. Div. July 11, 2007).................................................................................................23


TABLE OF AUTHORITIES(continued)

Page(s)

iv

Palmore v. Sidoti,466 U.S. 429 (1984).................................................................................................................18

Pension Benefit Guar. Corp. v. White Consol. Indus.,998 F.2d 1192 (3d Cir. 1993).....................................................................................................8

Regalbuto v. City of Phila.,937 F. Supp. 374 (E.D. Pa. 1995) ............................................................................................13

State v. Cameron,100 N.J. 586 (1985) .................................................................................................................23

Tenafly Eruv Ass’n v. Borough of Tenafly,309 F.3d 144 (3d Cir. 2002).....................................................................................................15

Trade Waste Mgmt. v. Hughey,780 F.2d 221 (3d Cir. 1985).....................................................................................................20

Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,429 U.S. 252 (1977).....................................................................................................15, 16, 18

Constitutions & Statutes

U.S. Const. amend. XIV ................................................................................................................19

Bernards Township Ordinance § 21-1.3 ........................................................................................26

Bernards Township Ordinance § 21-22.1 .............................................................................. passim

Religious Land Use and Institutionalized Persons Act42 U.S.C. § 2000cc, et seq. .............................................................................................. passim

Other Authorities

Fed. R. Civ. P. 8...............................................................................................................................3

Fed. R. Civ. P. 12...........................................................................................................................12

D. Laycock & L. Goodrich, RLUIPA: Necessary, Modest, and Under-Enforced,39 FORDHAM URB. L.J. 1021 (2012)........................................................................................16

U.S. Department of Justice, Statement of the Department of Justice on the Land-Use Provisions of the Religious Land Use and Institutionalized Person Act(September 2010).....................................................................................................................16

Webster’s Third New International Dictionary of the English Language .......................................4


1

Pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, Plaintiffs the Islamic

Society of Basking Ridge (“ISBR”) and Dr. Mohammad Ali Chaudry respectfully submit this

memorandum of law in support of their motion for partial judgment on the pleadings with

respect to the third, eighth, and tenth causes of action in their Complaint as to the issue of

parking.

PRELIMINARY STATEMENT

Plaintiffs sought to build a mosque in Bernards Township with capacity for 150

worshippers on a site zoned for houses of worship. Defendant Planning Board denied their

application after a four-year process that involved a record 39 public hearings. That denial

purported to be based on numerous land-use issues, but nearly all of them were underpinned by

one finding: the Planning Board’s ruling on parking. The Planning Board required ISBR’s

mosque to have 107 parking spaces—more than double the 50 spaces required under the 3:1

parking ratio for houses of worship set forth in the applicable township ordinance (the “Parking

Ordinance” or “Township Ordinance § 21-22.1”). The Planning Board then leveraged its

parking determination to generate a litany of other pretextual bases for denial, e.g., quibbling

over the placement of a drainage basin forced into its proposed location by the supersized

parking lot. Those bases for denial are borne of the parking determination and collapse without

it. But the Court need not await discovery to invalidate the Planning Board’s parking

determination. In their Answer, Defendants admit all of the facts necessary for the Court to

strike down the parking determination on the pleadings for two independent reasons.

First, in their Answer, Defendants admit facts that constitute a violation of § 2(b)(2) of

the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). That section prohibits

“land use regulation that discriminates against any assembly or institution on the basis of

religion.” 42 U.S.C. § 2000cc(b)(2). Under Third Circuit precedent, discrimination “need not be


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motivated by ill will, enmity, or hostility.” “All you need is that the state action meant to single

out a plaintiff because of” their religion. RLUIPA applies strict liability to discrimination: a

township violates the law if it acts on the basis of a plaintiff’s religion to treat him differently

than those of other faiths. Here, Defendants admit in their Answer that the parking

determination was based on Defendants’ Islamic faith. Specifically, Defendants admit that they

created an individualized mosque-specific parking requirement that differed from that applied to

churches and synagogues. They admit that to reach that result, they misconstrued the Parking

Ordinance to find that the 3:1 ratio listed therein applied only to Christian churches and not

Muslim mosques, even though the ordinance defines the word “church” to include mosques.

Defendants even admit they never engaged in an individualized determination of parking need or

required more parking than the 3:1 ratio for any prior house of worship applicant, including

specifically identified churches and synagogues. Defendants’ creation and application of a

parking standard to ISBR that had never previously been applied to another religious group,

paired with their admittedly and pointedly different treatment of churches and synagogues,

violates RLUIPA and mandates partial judgment on the pleadings with respect to Plaintiffs’ third

cause of action.

Second, the parking determination was based on a section of the Parking Ordinance that

is unconstitutional under both the U.S. and New Jersey Constitutions. Defendants admit that the

Planning Board relied on a section of the Parking Ordinance that states: “since a specific use

may generate a parking demand different from” the ratio enumerated in the ordinance, the

Planning Board “may . . . require that provision be made for the construction of spaces in excess

of those required” by the 3:1 ratio. Per the Planning Board, this language endowed it with

unbridled discretion to require whatever number of parking spaces it wanted for ISBR’s mosque.


3

Under settled constitutional precedents, however, ordinances must provide “explicit standards”

to prevent “arbitrary and discriminatory enforcement” by entities like planning boards. Absent

such explicit standards, an ordinance is unconstitutionally vague. Courts have applied these due

process principles to invalidate a variety of land use provisions granting local officials expansive

discretion. Courts have even invalidated ordinances that do list explicit standards if they are

subject to different interpretations. And courts have applied these principles to invalidate

sections of parking ordinances specifically. For example, in a ruling cited with discussion and

approval in New Jersey, the Ohio Supreme Court severed and invalidated sections of a local

parking ordinance very similar to those at issue here, which purported to give a municipality

discretion to deviate upwards from the fixed parking ratio listed in the ordinance. The same

result should apply here. The Court should sever and invalidate the challenged sections of the

Parking Ordinance as unconstitutional pursuant to Plaintiff’s eighth and tenth causes of action.

Plaintiffs’ motion should be granted.

FACTS ADMITTED BY DEFENDANTS1

A. ISBR Proposed to Build a Mosque with 50 Parking Spaces

On April 20, 2012, ISBR submitted an application to the Planning Board for preliminary

and final site plan approval to construct a 4,252-square-foot mosque on its property. (Ex. 1

¶ 62.) Under the site plan submitted by ISBR, the proposed mosque would contain a 1,594-

square-foot prayer hall, a wash room used for the Islamic pre-prayer cleansing ritual known as

1 These facts are based on Defendants’ express admissions or failures to deny Plaintiffs’allegations in their Answer (ECF No. 15). See Fed. R. Civ. P. 8(b)(6) (“An allegation . . . isadmitted if a responsive pleading is required and the allegation is not denied.”). All exhibits areattached to the supporting Declaration of Adeel A. Mangi. Exhibit 1 is a demonstrative exhibitcompiled by Plaintiffs’ counsel listing all allegations from Plaintiffs’ Complaint (ECF No. 1)alongside the corresponding paragraph from Defendants’ Answer. Unless otherwise indicated,all citations to the pleadings reference Exhibit 1 (“Ex. 1”).


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wudu, and a multi-purpose room, among other features. (Id.) The maximum occupancy for the

prayer hall was estimated at 150 worshippers. (Id. ¶ 64.)

ISBR’s original site plan application proposed to build 50 parking spaces. (Id. ¶ 63.) In

doing so, ISBR adhered to the express terms of the Parking Ordinance, i.e., Township Ordinance

§ 21-22.1, which sets forth the “acceptable” number of parking spaces for, among other things,

houses of worship. (Id. ¶¶ 125-126.) Specifically, the Parking Ordinance provides as follows:

The development plan shall show the total number of off-streetparking spaces required for the use or combination of usesindicated in the application. The schedule below representsstandards acceptable to the Township. It is the intent of thischapter to provide for parking demand by requiring off-streetparking except as noted for residential development. Since aspecific use may generate a parking demand different from thoseenumerated below, documentation and testimony shall bepresented to the Board as to the anticipated parking demand.Based upon such documentation and testimony, the Board may:(a) Allow construction of a lesser number of spaces, . . . [or] (b) Inthe case of nonresidential uses, require that provision be made forthe construction of spaces in excess of those required hereinbelow,to ensure that the parking demand will be accommodated by off-street spaces.

Township Ord. § 21-22.1 (emphasis added).2 It then sets forth specific ratios for particular uses.

Among other things, it provides that “Churches, auditoriums, [and] theaters” shall provide “1

space for every 3 seats or 1 space for every 24 linear inches of pew space.” Id.; (see also Ex. 1

¶ 125). Under the operative definitions clause, words in the Parking Ordinance that are not

expressly defined have the definitions set forth in Webster’s Third New International Dictionary

of the English Language (unabridged version) (the “Dictionary”). (Ex. 1 ¶ 126.) “Church” is not

expressly defined in the Township ordinances and, therefore, the Dictionary definition applies.

2 The language that Plaintiffs challenge and seek to sever as unconstitutional is italicized in theblock quote above. Township Ordinance § 21-22.1 is attached in its entirety as Exhibit 2.


5

(Id.) The Dictionary defines a “church” as “a place of worship of any religion (a Muslim ~).”

(Id.) Accordingly, “‘churches’ include houses of worship for all religions, including mosques,”

and Defendants expressly admit that this is true. (Id.)

B. Defendants Created a New Parking Standard for ISBR Because It Is anIslamic Congregation

Defendants admit that, since it was first adopted decades ago, the 3:1 ratio set forth in

Township Ordinance § 21-22.1 was applied to every single house of worship that applied for site

plan approval, except for ISBR. (Id. ¶ 127.) The Planning Board held multiple hearings focused

on ISBR’s parking demand, which was in stark contrast to its routine application of the Parking

Ordinance’s 3:1 ratio to every other house of worship in the Township.

Notably, the Planning Board’s and Township’s own planners originally acceded to the

use of the 3:1 ratio in connection with ISBR’s application. In August 2012, upon reviewing

ISBR’s original site plan and proposal to build 50 parking spaces, the Planning Board’s Planner,

David Banisch, “did not recommend any increase in the number of spaces” beyond ISBR’s

application of the 3:1 ratio. (Id. ¶ 129.) Similarly, in his initial review letter, the Township’s

Planner, David Schley, expressly noted ISBR’s proposal of 50 parking spaces, reflecting the

application of the 3:1 ratio, without advising the Planning Board of the need for any variance

relief from the Parking Ordinance. (Id. ¶ 130.) The Township Planner’s review letter for a

development proposal is designed to inform the Planning Board of any and all required variances

and exceptions an applicant needs from the applicable land use ordinances. (Id.)

On August 7, 2012, the Planning Board began to hold public hearings on ISBR’s

application, which continued for three-and-a-half years through December 8, 2015. (Id. ¶ 65.)

In total, the Planning Board held 39 hearings, more hearings with respect to a site plan

application than had ever been held in the Township’s history. (Id. ¶¶ 65, 66.) Parking was an


6

early focus. At the initial hearings, members of the Planning Board and community objectors

challenged ISBR’s representations about the expected occupancy of the mosque and thus, the

parking required. (Id. ¶¶ 133-35.) One objector asked Dr. Chaudry, “I don’t know that much

about your religion, but do you encourage couples to have a number of children?” (Id. ¶ 131.)

That objector then questioned ISBR’s growth estimates. (Id.) Dr. Chaudry testified that ISBR

had 55 members and an average of 65 attendees at its Friday afternoon Jumma service, which is

its only weekly congregational service. (Id. ¶ 132.) Dr. Chaudry testified that, using the highest

known growth rates, he expected a maximum of 150 attendees at Jumma services within five to

10 years. (Id.) Planning Board member Richard Huckins stated, “I’ve read somewhere that

there’s like an estimate of . . . 50 to 100,000 Muslims in the State of New Jersey. . . . I find it

hard to believe that you would see such a small number to just go from 55 to 150.” (Id. ¶ 133.)

As the hearing continued, the Planning Board was encouraged by objectors to explore novel

methodologies to determine ISBR’s parking demand.

Following the initial public hearings, on October 25, 2012, Board Planner Banisch issued

a memorandum in which he attempted to estimate the appropriate number of parking spaces for

ISBR based on the number of Muslim prayer rugs he could fit into the proposed prayer hall. (Id.

¶ 136.) Mr. Banisch estimated that the prayer hall could fit 168 worshippers, and then divided

that number by three, still applying the 3:1 ratio set forth in Township Ordinance § 21-22.1. (Id.)

Mr. Banisch’s calculation yielded 56 parking spaces, which was not much different from the 50

provided in ISBR’s original application. (Id.) The Planning Board did not adopt this calculation.

However, at the Planning Board’s hearing on October 25, 2012, counsel for community

objectors questioned ISBR’s traffic engineer about a parking ratio specific to mosques set forth

in the Institute of Transportation Engineers’ (“ITE”) publication, Parking Generation. (Id.


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¶ 137-138.) According to the ITE, Parking Generation is created by “volunteers,” is “not the

result of a financed research effort,” and “does not provide authoritative . . . standards on parking

demand.” (Id. ¶ 138.) The Planning Board had never applied ITE parking rates to determine the

parking requirement of any house of worship in the Township. (Id. ¶ 139.) But for ISBR, the

Planning Board directed the traffic engineers for all parties to research the ITE’s parking ratio for

mosques. (Id.)

In a December 14, 2012 letter, ISBR reiterated its position that the Parking Ordinance’s

3:1 parking ratio for houses of worship should dictate the number of parking spaces it would be

required to build. (Id. ¶ 140.) Nonetheless, in response to the Planning Board’s request, ISBR’s

traffic engineer provided parking ratios for houses of worship set forth in a variety of industry

publications, including ITE’s Parking Generation. (Id.) Those ratios resulted in estimates of

parking demand ranging from 36 spaces to 110 spaces. (Id.) The ratio from ITE’s Parking

Generation yielded the estimate of 110 spaces, the highest parking requirement listed in ISBR’s

letter. (Id.) In a response letter dated December 21, 2012, community objectors argued that the

3:1 parking ratio in the Parking Ordinance should not apply to ISBR’s plans because a mosque is

not a “church,” and that the ITE’s parking rates—yielding a requirement of 110 spaces—should

apply to ISBR. (Id. ¶ 141.)

On January 3, 2013, the Planning Board’s attorney, Jonathan Drill, and Board Planner

Banisch issued a joint memorandum, advising the Planning Board as to the following two

conclusions: (1) Township Ordinance § 21-22.1’s 3:1 ratio applied only to Christian churches,

and (2) the Planning Board was required to engage in an individualized assessment of ISBR’s


8

parking need, and that of every other applicant. (Id. at ¶¶ 142-45; Exhibit 3.3) Despite this claim,

Defendants admit that the “Board has never engaged in an individualized determination of

additional parking need for any other applicant” prior to ISBR. (Ex. 1 ¶ 127.) To the contrary,

the Planning Board applied the Parking Ordinance’s 3:1 ratio to determine the parking demand

of every house of worship in the Township before ISBR. (Id.)

The joint memorandum “looked outside of the Parking Ordinance for guidance on the

appropriate ratio for ISBR’s proposed use” and adopted the ITE’s standard for mosques from

Parking Generation. (Id. ¶ 145.) Defendants admit “that the Board never applied the ITE

parking rates to determine the parking requirement for any other house of worship” prior to

ISBR. (Id. ¶ 139.) The joint memorandum further stated that the reason for focusing on the ITE

rates was that “all of the sources identified by ISBR, with the sole exception being ITE’s

publication titled ‘Parking Generation’ (4th Edition), are pre-2010 and do not include any

differentiation between churches, synagogues and mosques, which differentiation is identified in

the fourth edition of ITE’s Parking Generation, which was published in 2010.” (Ex. 3 at 5

(emphasis in original).) Based on the methodology utilized by the ITE, the joint memorandum

“calculated a requirement of 110 parking spaces” for ISBR. (Ex. 1 ¶ 145.) By looking outside

the Parking Ordinance and its 3:1 parking ratio, which applied to houses of worship before

3 The January 3, 2013 joint memorandum is attached hereto as Exhibit 3 (“Ex. 3”). The Courtcan properly consider the joint memorandum on this motion because it is explicitly referenced inthe Complaint and the Defendants admit its existence, the legal authority cited therein, and itscore conclusion. (Ex. 1 ¶¶ 142-145.) See In re Burlington Coat Factory Sec. Litig., 114 F.3d1410, 1426 (3d Cir. 1997) (affirming a district court’s consideration of a document implicitlyincorporated into the plaintiff’s complaint); Pension Benefit Guar. Corp. v. White Consol. Indus.,998 F.2d 1192, 1196 (3d Cir. 1993) (a “court may consider an undisputedly authentic document”attached to moving papers without converting a motion to one for summary judgment).


9

ISBR’s application, the Planning Board created a never-before-used standard to determine

ISBR’s parking demand.

The authors of the joint memorandum were well aware that the challenged sections of the

Parking Ordinance upon which they relied to recommend a new methodology might be

unconstitutional. In response to a letter from ISBR’s counsel arguing that the challenged

language was unconstitutional due to its failure to provide “sufficient standards to prevent

arbitrary and indiscriminate interpretation or application,” the authors of the joint memorandum

advised the Planning Board that “the Board is not at liberty to ignore the express terms of the

ordinance . . . because the Board is not the forum before which the applicant may argue illegality

of an ordinance.” (Ex. 3 at 4.)

Applying the joint memorandum’s conclusion that a mosque should be treated differently

from a “church,” the Planning Board requested that ISBR’s traffic engineer collect additional

data regarding ISBR’s actual parking demand. (Ex. 1 ¶ 146.) As a result, from January until

June of 2013, ISBR presented supplemental parking studies and extensive testimony from its

traffic engineer, who disagreed with the Planning Board’s estimates of ISBR’s parking demand.

(Id.) Even based on his own collection of additional data and using the Planning Board’s

preferred ITE methodology, ISBR’s traffic engineer stated to the Planning Board that ISBR’s

parking requirement should be no higher than 70 spaces. (Id.) The Planning Board again posed

questions designed to elicit higher numbers. Even though the joint memorandum itself

recognized that traffic engineers use parking data representing the 85th percentile of parking

demand and that using 100th percentile figures would result in production of an unnecessary

number of parking spaces, the Planning Board questioned ISBR’s traffic engineer about the

100th percentile figures. (Id. ¶ 148.)


10

On June 4, 2013, the Planning Board heard testimony from a traffic engineer presented

by community objectors who recommended that ISBR be required to provide 107 parking spaces

for its mosque. (Id. ¶ 149.) Later in that same hearing, the Planning Board “formally voted . . .

to establish the number of parking spaces” for the mosque at 107. (Id.; see also ECF No. 15-1,

Planning Board’s January 19, 2016 Resolution (“Resolution”), at 15 n.4.) To arrive at 107

parking spaces, the Planning Board accepted ISBR’s proposed occupancy of 150 worshippers

and applied to that number a multiplier supplied by the community objectors’ traffic engineer.

(Resolution, at 15 n.4.)

C. The Planning Board Has Never Applied the Standards Deployed forISBR’s Application to Any Other Houses of Worship

Since the enactment of Township Ordinance § 21-22.1, the Planning Board has never

applied the standards it implemented for ISBR’s application to any other house of worship in

Bernards Township. (Ex. 1 ¶ 127.) For instance, in 1998, Millington Baptist Church

(“Millington”) applied to the Planning Board for preliminary and final site plan approval to

construct a 67,390-square-foot church with 1,200 seats. (Id. ¶ 269.) In granting Millington’s

application in 1999, the Planning Board calculated the number of parking spaces required for

Millington by using the 3:1 parking ratio set forth in Township Ordinance § 21-22.1. (Id.

¶¶ 269-270.) The Planning Board did not perform an individualized analysis of Millington’s

actual parking need. (Id. ¶ 270.) Defendants admit that, with “respect to Millington’s 1998

application, the Board treated Millington differently and better than ISBR in that the Board

calculated parking for a house of worship using the 3:1 ratio set forth in the Township

ordinance.” (Id.)

Similarly, in 1995, Chabad Jewish Center (“Chabad”), a synagogue, applied to the

Planning Board for preliminary and final site plan approval to construct a 40-seat synagogue.


11

(Id. ¶ 244.) Chabad’s site plan applied the “1 space / 3 seats” ratio for “houses of worship.” (Id.

¶ 245.) In granting Chabad’s application, the Planning Board did not perform an individualized

inquiry into Chabad’s actual parking needs. (Id.) Five years later, Chabad applied to the

Planning Board for approval of an additional project, which included building a 200-seat

sanctuary. (Id. ¶ 249.) Again, in granting Chabad’s application, the Planning Board applied the

3:1 ratio to the number of seats in the sanctuary. (Id. ¶ 250.)

In 1993, Congregation B’nai Israel (“B’nai Israel”), another synagogue, applied for

preliminary and final site plan approval to build a 25,808-square-foot complex, including a

synagogue and a school. (Id. ¶ 257.) The Planning Board calculated B’nai Israel’s parking

requirement under the Parking Ordinance and, at B’nai Israel’s request, granted downward relief

from the Parking Ordinance’s 3:1 ratio. (Id. ¶ 258.) The Planning Board did not perform an

individualized analysis of B’nai Israel’s actual parking need. (Id. ¶¶ 127, 258-259.)

D. The Planning Board’s Parking Determination Impacted Critical Aspects ofISBR’s Application

The Planning Board’s parking determination forced ISBR to substantially redesign its

original site plan application. (Id. ¶ 155.) Since ISBR was required to more than double its

parking lot, its 4.08-acre property contained less land that could be used for other purposes. The

size of the parking lot was central to the other bases for denial cited by the Planning Board.

For example, one basis for denial related to the placement and size of drainage features.

The Township’s “buffer” ordinance restricts the permissible uses of the 50-foot borders of

ISBR’s property adjacent to residential lots. (Id. ¶ 154.) As a consequence of the Planning

Board’s parking decision, ISBR had less land outside of the buffer zone on which it could fit

improvements such as a drainage infrastructure. (Id. ¶ 155; see also Resolution, at 15 n.4.) In

addition, the increase in parking lot size meant an increase in the property’s “impervious


12

surface,” i.e., the area covered by waterproof blacktop, as opposed to a permeable surface that

would allow runoff to naturally absorb into the ground. (Ex. 1 ¶ 155; Resolution, at 16.) The

increase in impervious coverage required ISBR to increase the size of its “detention basins,” the

grass-covered drainage improvements designed to accommodate rainwater runoff from the

parking lot. (Ex. 1 ¶ 155.) Since ISBR was required to more than double the size of its parking

lot, the only practical placement on the property for one of the two necessary detention basins is

in the eastern buffer area. (Id. ¶ 155.) As one Planning Board member recognized during the

proceedings, “by making the vote on the parking spaces, we sort of forced this configuration of

[the detention basin]. So . . . I think we put [ISBR] in this situation [by] requiring more parking

places.” (Id. ¶ 156.) Under the Township’s buffer ordinance, drainage basins are permissible in

buffer areas as long as they are approved by the Planning Board. (Id. ¶ 158.) But the Planning

Board denied ISBR such approval on the ground that the placement of the detention basin

“defeat[ed] the very purpose of the buffer.” (Resolution, at 14.)

In its resolution denying ISBR’s application, the Planning Board conceded that if it had

reduced the parking requirement to even 83 spaces, let alone the 50 that would be appropriate

under the Parking Ordinance, it would have gone “a long way in reducing the impervious

coverage on the property, which would result in a reduction in the size of the detention basins,

while also making more land area available on the property on which to locate the large basin,

which would result in the basin being moved out of the buffer area.” (Id. at 16.)

LEGAL STANDARD

“The purpose of judgment on the pleadings is to dispose of claims where the material

facts are undisputed and judgment can be entered on the competing pleadings and exhibits

thereto, and the documents incorporated by reference.” King v. Baldino, 648 F. Supp. 2d 609,


13

614-15 (D. Del. 2009). “A motion for judgment on the pleadings pursuant to Fed. R. Civ. P.

12(c) is assessed under the same standard as a motion to dismiss pursuant to Fed. R. Civ. P.

12(b)(6).” Regalbuto v. City of Phila., 937 F. Supp. 374, 376-77 (E.D. Pa. 1995), aff’d, 91 F.3d

125 (3d. Cir. 1996). That is, “a district court must view the facts and inferences to be drawn

from the pleadings in the light most favorable to the non-moving party.” Id.; see also Janney

Montgomery Scott, Inc. v. Shepard Niles, Inc., 11 F.3d 399, 406 (3d Cir. 1993). A court “may

consider documents that are attached to or submitted with the complaint and any ‘matters

incorporated by reference or integral to the claim, items subject to judicial notice, matters of

public record, orders, [and] items appearing in the record of the case.’” Buck v. Hampton Twp.

Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (citation omitted). Judgment should be granted

under Rule 12(c) “if it is clearly established that no material issue of fact remains to be resolved

and that the movant is entitled to judgment as a matter of law.” Regalbuto, 937 F. Supp. at 377;

see also Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 290-91 (3d Cir. 1988).

ARGUMENT

I. The Planning Board’s Determination of ISBR’s Parking RequirementViolated RLUIPA’s Non-Discrimination Provision

The Planning Board based its parking requirement for ISBR on the fact that ISBR is an

Islamic congregation. But for ISBR’s faith, it would not have been required to incorporate plans

for a parking lot more than twice the size of what would be “acceptable” for a church or

synagogue. The Planning Board’s discrimination on the basis of religion was explicit in this

respect, and Defendants admit it.

A. Religious Distinctions Violate RLUIPA’s Non-Discrimination Provision

RLUIPA is designed to provide “heightened protection” for religious exercise,

particularly in the area of “land-use regulation.” Cutter v. Wilkinson, 544 U.S. 709, 714-15


14

(2005); see also Holt v. Hobbs, 135 S. Ct. 853, 859 (2015) (noting that “Congress enacted

RLUIPA . . . ‘in order to provide very broad protection for religious liberty’”). Section 2(b)(2)

of RLUIPA prohibits the implementation of a “land use regulation that discriminates against any

assembly or institution on the basis of religion.” 42 U.S.C. § 2000cc(b)(2). In order to

demonstrate a claim under this provision, a “[p]laintiff must establish that (1) it is an assembly or

institution, (2) subject to a land use regulation, (3) which has been imposed or implemented in a

manner that discriminates on the basis of religion.” Al Falah Ctr. v. Bridgewater, No. 11-cv-

2397, 2013 U.S. Dist. LEXIS 190076, at *41 (D.N.J. Sept. 30, 2013); see also Adhi Paraskthi

Charitable v. Twp. of W. Pikeland, 721 F. Supp. 2d 361, 385 (E.D. Pa. 2010). Once a plaintiff

makes out a prima facie case under RLUIPA, “the government shall bear the burden of

persuasion on any element of the claim.” 42 U.S.C. § 2000cc-2(b).

The non-discrimination provision tailors the protections of the First and Fourteenth

Amendments to land use regulations because Congress identified a significant encroachment on

core Free Exercise and Equal Protection rights of religious observers. See Chabad Lubavitch of

Litchfield Cnty., Inc. v. Litchfield Historic Dist. Comm’n, 768 F.3d 183, 198 (2d Cir. 2014)

(citing Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)); see also Midrash

Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1239-40 (11th Cir. 2004). Courts analyzing

RLUIPA’s nondiscrimination provision look to Equal Protection precedent in weighing whether

there has been discrimination “on the basis of religion” under RLUIPA. Chabad, 768 F.3d at

198.

In order to establish religious discrimination, a plaintiff’s “religious affiliation must have

been a substantial factor” in determining the relevant disparity of treatment. Hassan v. City of

New York, 804 F.3d 277, 294 (3d Cir. 2015). A plaintiff may show discrimination by pointing to


15

(1) a facially discriminatory policy, (2) a facially neutral policy discriminatorily enforced, or

(3) a facially neutral policy purposefully designed to impose disparate burdens. Id. To

determine whether unlawful discrimination was a “motivating factor” in official conduct, courts

look to “such circumstantial and direct evidence of intent as may be available.” Vill. of Arlington

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977).

Invidious motive is not a necessary element of illegal discrimination. Hassan, 804 F.3d

at 297. “All you need is that the state actor meant to single out a plaintiff because of the

protected characteristic itself.” Id. (emphasis in original). Discrimination “need not be

motivated by ill will, enmity, or hostility.” Id. at 298 (internal citations omitted); see also

Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 168 n.30 (3d Cir. 2002)

(“discriminatory purpose” can be inferred “without examining the responsible officials’

motives”); Cmtys. for Equity v. Mich. High Sch. Ath. Ass’n, 459 F.3d 676, 694 (6th Cir. 2006)

(distinguishing “intentional discrimination—i.e., an intent to treat two groups differently—

[from] an intent to harm”). Rather, in this case, Defendants “intentionally discriminated if they

wouldn’t have” applied different parking standards to Plaintiffs if they “had not been Muslim.”

Hassan, 804 F.3d at 298; see also Fowler v. R.I., 345 U.S. 67, 69 (1953) (holding that the Free

Exercise Clause forbids state action where “it plainly shows that a religious [activity of one

religion] is treated differently than a religious [activity] of other sects”).

Once a plaintiff shows that a municipality gave a religious organization less favorable

treatment than another with respect to land use matters, RLUIPA’s non-discrimination provision

is violated. Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 268-69

(3d Cir. 2007); Adhi Paraskthi, 721 F. Supp. 2d at 384. “The land-use provisions of RLUIPA

are structured to create a clear divide between claims under section 2(a) (the Substantial Burdens


16

section) and section 2(b) (the Discrimination and Exclusion sections . . . ).” Lighthouse, 510

F.3d at 269. The “Substantial Burden section includes a strict scrutiny provision and the

Discrimination and Exclusion section does not.” Id. “[T]his ‘disparate exclusion’ was part of

the intent of Congress and not an oversight.” Id.; see also D. Laycock & L. Goodrich, RLUIPA:

Necessary, Modest, and Under-Enforced, 39 FORDHAM URB. L.J. 1021, 1058 (2012) (“This

distinction did not happen by accident.”). Under § 2000cc(b)(2), therefore, “there is strict

liability; if discrimination occurred, the government does not have the opportunity to justify the

conduct by showing a compelling interest.” Adhi Paraskthi, 721 F. Supp. 2d at 384; see also Al

Falah Ctr., 2013 U.S. Dist. LEXIS 190076, at *46 (discussing RLUIPA’s strict liability standard

for § 2000cc(b)(1)); Statement of the Department of Justice on the Land-Use Provisions of the

Religious Land Use and Institutionalized Person Act (September 2010) (If a religious institution

is denied a land use benefit “that would have been given to it had it been part of a different

religion or religious denomination, Section 2(b)(2) has been violated.”)4

B. The Planning Board’s Religious Discrimination Was Explicit and IsAdmitted

Defendants’ admissions leave no doubt that a “motivating factor”—if not the sole

factor—in the Planning Board’s decision to subject ISBR to a novel, individualized parking

analysis was ISBR’s status as an Islamic congregation. While this case presents a facially

neutral law applied in a discriminatory manner, on these undisputed facts, the Court need not

burden itself with searching circumstantial evidence for hints of unlawful intent. Cf. Arlington

Heights, 429 U.S. at 266. Here, the evidence is explicit and based on Defendants’ own

admissions.

4 Available at https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/rluipa_q_a_9-22-10_0.pdf.


17

The Parking Ordinance lays out a clear and “acceptable” parking requirement—the 3:1

ratio—that, by its terms, applies to all houses of worship, including mosques. (Ex. 1 ¶ 125.)

Defendants admit that the Parking Ordinance’s “3:1 parking ratio was applied to houses of

worship which applied for site plan approval before the Islamic Society of Basking Ridge.” (Id.

¶ 127.) Defendants further admit that the 3:1 ratio was applied to every house of worship,

regardless of denomination, since the ordinance was first adopted. (Id.) However, per

Defendants’ own words in the joint memorandum, the 3:1 ratio was “not applicable to mosques

. . . . By its express terms, this standard applies only to ‘churches, auditoriums and theaters.’”

(Ex. 3 at 2.) Defendants now admit in their Answer that this conclusion was erroneous and

based on a misreading of the local ordinance. (Ex. 1 ¶ 127.) Thus, Defendants admit that the

Planning Board subjected ISBR to an “individualized determination” based on an erroneous

interpretation that had never been applied to any other applicant, only because the proposed

establishment was not a church, but a mosque. (Id.)

Defendants’ justification—admitted in the joint memorandum and in their Answer—for

drawing a distinction between mosques and other houses of worship is that “the ITE parking

rates at issue were not published in the ITE Parking Generation Manual until 2010, which was

subsequent to the applications relating to the other houses of worship.” (Id. ¶ 139.) That is, the

Planning Board’s basis for using the ITE rates was the fact that the ITE explicitly distinguished

among mosques, synagogues, and churches as to parking requirements. (See Ex. 3 at 5 (“[A]ll of

the sources identified by ISBR, with the sole exception being ITE’s publication titled ‘Parking

Generation’ (4th Edition), are pre-2010 and do not include any differentiation between churches,

synagogues and mosques, which differentiation is identified in the fourth edition of ITE’s

Parking Generation, which was published in 2010.”) (emphasis in original).) But the fact that a


18

private engineering publication draws a distinction based on religion does not give a

municipality—or any government—a free pass to discriminate on the basis of religion. See

Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law,

but the law cannot, directly or indirectly, give them effect.”); see also Lukumi, 508 U.S. at 534

(“departures from neutrality” are not permitted). This is the very form of discrimination that

triggers strict liability under RLUIPA.

C. Defendants Admit That the Planning Board Treated Other Houses ofWorship Differently and Better Than ISBR

Defendants’ explicit religious basis for creating a brand new (and detrimental)

individualized parking analysis for ISBR based on it being an Islamic congregation constitutes a

violation of § 2(b)(2) of RLUIPA. See supra Part I.B. Defendants, however, cement the basis

for a finding of religious discrimination by also admitting, in no uncertain terms, the disparities

in their treatment of ISBR as compared to similar houses of worship in the Township. While a

violation of RLUIPA’s non-discrimination provision “may be proven without reference to a

religious analogue,” such evidence “is certainly germane to a selective enforcement analysis.”

Chabad, 768 F.3d at 199; see also Arlington Heights, 429 U.S. at 266 (both “circumstantial and

direct evidence” are relevant to a determination of intent).

Defendants admit that the Planning Board treated ISBR differently from several similar

houses of worship. For instance, Defendants admit that they did not engage in individualized

determinations of parking need for any prior applicants. (Ex. 1 ¶ 127.) Rather, the Planning

Board applied the Parking Ordinance’s 3:1 ratio to a church (Millington) and two synagogues

(B’nai Israel and Chabad), but not to ISBR. And they admit that the Planning Board historically

applied the 3:1 ratio to synagogues despite its position with respect to ISBR’s application that the

word “church” in the ordinance refers only to Christian churches. (Id. ¶¶ 244-45, 258.) As


19

Defendants admit: the “3:1 parking ratio was applied to houses of worship which applied for site

plan approval before the Islamic Society of Basking Ridge.” (Id. ¶ 127.)

The law does not allow Bernards Township to treat a mosque less favorably than a

Christian church or synagogue based on the faith of its members. Defendants’ admission that

they have done so demands entry of judgment on the pleadings as to discrimination under

RLUIPA.

II. The Parking Ordinance Is Unconstitutionally Vague

The weapon utilized by the Planning Board to implement its discrimination was the

limitless—and unlawful—discretion purportedly bestowed upon it by Township Ordinance § 21-

22.1. That Ordinance sets forth a list of “acceptable” ratios applicable to a variety of uses,

including houses of worship. Township Ord. § 21-22.1(a)(1). However, the ordinance also

provides that, “[s]ince a specific use may generate a parking demand different from those

enumerated [in the ratios set forth in the ordinance], documentation and testimony shall be

presented to the [Planning] Board as to the anticipated parking demand.” Id. Under the

ordinance, “[b]ased upon such documentation and testimony, the [Planning] Board may . . .

require that provision be made for the construction of spaces in excess of those required [by the

ratios set forth in the ordinance], to ensure that the parking demand will be accommodated by

off-street spaces.” Id. This language allows the Planning Board unbridled discretion and that

renders the challenged sections of the Parking Ordinance unconstitutionally vague under the U.S.

and New Jersey Constitutions.

A. The Parking Ordinance Is Unconstitutional Under the U.S. Constitution

The Fourteenth Amendment to the U.S. Constitution provides that no state shall “deprive

any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV.

“Supreme Court precedent recognizes two independent grounds upon which a statute’s language


20

may be so vague as to deny due process of law.” Cunney v. Bd. of Trs. of Grand View, 660 F.3d

612, 620 (2d Cir. 2011). “First, a statute making conduct unlawful must give the person of

ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act

accordingly. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must

provide explicit standards for those who apply them.” Trade Waste Mgmt. v. Hughey, 780 F.2d

221, 235 (3d Cir. 1985) (citing Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972))

(quotations omitted); see also City of Chi. v. Morales, 527 U.S. 41, 56 (1999). A law is

unconstitutionally vague if it “authorize[s] and even encourage[s] arbitrary and discriminatory

enforcement.” Morales, 527 U.S. at 56. To withstand constitutional scrutiny, municipal rules

must supply a “standard that can be objectively applied to determine if the conduct at issue . . .

complies with the ordinance’s restrictions.” Cunney, 660 F.3d at 622.

The Court of Appeals for the Second Circuit’s decision in Cunney, 660 F.3d 612,

applying these principles in the land use context, is instructive. In Cunney, a community’s

zoning ordinance designed to preserve views of the Hudson River prohibited buildings that

“shall rise . . . more than four and one-half (4 1/2) feet above the easterly side of River Road” (a

road running along the Hudson River). Cunney, 660 F.3d at 615-16. Despite the fact that the

ordinance expressly specified the permissible limits of height for any building on River Road,

the court found the ordinance to be unconstitutionally vague because it failed to specify the

location of an adjacent elevation point from which the height of a building must be measured.

Id. at 621. In the context of River Road’s changes in elevation along its length, the court held

that “it is remarkably unclear with respect to how the four and a half foot limitation is defined.

In this latter regard, nowhere does the ordinance describe from what adjacent elevation point on

River Road the height of a building must be measured to determine the building’s compliance


21

with [the ordinance’s] height restriction.” Id. Since the elevation of River Road’s surface varied

relative to the ground surface of the property at issue, the court reasoned that “the ordinance

provide[d] no standard that can be objectively applied to determine if the conduct at issue in this

case—the construction of [the plaintiff’s] house—complie[d] with the ordinance’s restrictions.”

Id. at 622. The court held that the ordinance’s critical constitutional shortcomings were not only

that it failed “to give specific notice of how a permit applicant should design his site plan so that

the proposed building complies with that restriction,” but it also failed “to provide an objective

standard that the Village itself can apply in determining the project’s compliance once an

application has been submitted and thereafter when an approved project has been built.” Id. at

621.

Here, as in Cunney, the challenged language in the Parking Ordinance means that site

plan applicants in Bernards Township have no specific notice of how to design site plans so that

their parking provision satisfies the Parking Ordinance—the Planning Board claims discretion to

demand whatever it likes regardless of whether the site plan meets the ratios set forth in the

Parking Ordinance. Moreover, § 21-22.1 provides even fewer objective criteria than the

ordinance in Cunney. The Cunney ordinance at least provided a numeric height limit, see 660

F.3d at 615-16—its constitutional failing was that it did not describe from where that height

should be measured. Here, by contrast, the Parking Ordinance does not set forth any standards

related to the circumstances in which the Planning Board “may” exercise its discretion to

increase the number of parking spaces, or any criteria—let alone objective criteria—that could

guide or control the Planning Board’s discretion in increasing the number of parking spaces.

Indeed, in ISBR’s case, the Planning Board utilized its discretion to more than double the

number of parking spots required.


22

Similar to the Cunney court, the Third Circuit has affirmed that clauses of this type that

allow the use of subjective criteria by public officials are unconstitutional. Bykofsky v.

Middletown, 401 F. Supp. 1242, 1250-51 (M.D. Pa. 1975), aff’d without opinion, 535 F.2d 1245

(3d Cir. 1976), cert. denied, 429 U.S. 964 (1976). In Bykofsky, the Third Circuit upheld a district

court’s ruling that an ordinance permitting a borough mayor to “promulgate a general

‘regulation’” exempting certain activities from the borough’s curfew if the activities were

“consistent with the public interest” was unconstitutional because it “confer[red] upon the Mayor

virtually unbridled discretion . . . and allow[ed] him to be guided by his own personal concept of

‘public interest’. . . since there [were] no standards embodied in the ordinance for guidance.” Id.

That is similar to the unlimited discretion bestowed on the Planning Board here.

But this is an even more compelling case for invalidation based on vagueness than in

either Cunney or Bykofsky for an additional reason. Under Supreme Court precedent, “a more

stringent vagueness test” applies where a statute “threatens to inhibit the exercise of

constitutionally protected rights.” Hoffman Estates v. Flipside, 455 U.S. 489, 499 (1982). Put

another way, statutes that affect First Amendment rights are held to a higher standard of clarity.

See Berwick Area Landlord Ass’n v. Borough of Berwick, No. 07-cv-316, 2007 U.S. Dist. LEXIS

51207, at *10 (M.D. Pa. July 16, 2007). For example, when “an ordinary citizen . . . wants to

express a constitutionally protected” right in a township but the municipal ordinance does not

make clear “where he or she may set up shop,” the ordinance is void for vagueness. MAG Realty

v. City of Gloucester City, No. 10-cv-988, 2010 U.S. Dist. LEXIS 82035, at *54 (D.N.J. Aug. 12,

2010). Here, the Planning Board’s abandonment of the 3:1 ratio enumerated in the Parking

Ordinance in favor of an individualized assessment impacted Plaintiffs’ ability to use the

property for religious worship as protected by the First Amendment. As such, the Parking


23

Ordinance is subject to stringent application of the vagueness test under federal law and should

be invalidated.

B. The Parking Ordinance Is Unconstitutional Under the New JerseyConstitution

The New Jersey Constitution similarly prohibits statutes that “fail to provide adequate

notice of their scope and sufficient guidance for their application.” State v. Cameron, 100 N.J.

586, 591 (1985). Statutory clarity is “essentially a due process concept grounded in notions of

fair play.” Id. Zoning ordinances must meet the “test of certainty and definiteness.” Damurjian

v. Bd. of Adjustment, 299 N.J. Super. 84, 95 (N.J. App. Div. 1997). In order to satisfy this test, a

zoning ordinance “must be clear and explicit in its terms, setting forth sufficient standards to

prevent arbitrary and indiscriminate interpretation or application by local officials.” Id.; see also

N.J. Shore Builders Ass’n v. Twp. of Jackson, No. A-2507-05T5, 2007 N.J. Super. Unpub.

LEXIS 2987, at *14 (N.J. App. Div. July 11, 2007); Maplewood v. Tannenhaus, 64 N.J. Super.

80, 89 (N.J. App. Div. 1960).

New Jersey courts have explained that the requirement of “definiteness” has three

purposes. First, a zoning ordinance cannot grant “unbridled discretion” to the local officials

charged with its enforcement. Lionshead Woods Corp. v. Kaplan Bros., 250 N.J. Super. 545,

551 (N.J. Law Div. 1991). The ordinance must provide sufficiently clear standards to prevent

“determinations based upon whim, caprice or subjective considerations.” Morristown Rd.

Assocs. v. Borough of Bernardsville, 163 N.J. Super. 58, 67 (N.J. Law Div. 1978). Second,

zoning ordinances must set forth “workable guidelines to one seeking approval of plans” so that

the applicant can conform the proposed plan to the ordinance’s requirements. Id. Third, a

zoning ordinance must “provide a court with an understandable criterion for review” so that it

may determine whether the local officials’ decision was arbitrary and capricious. Id. at 64.


24

Three cases are instructive with respect to the constitutionality of Township Ordinance

§ 21-22.1 under New Jersey law. First, in Damurjian, the New Jersey Appellate Division

invalidated an ordinance concerning setback requirements providing that, “if the length of the

principal building, projected on the front lot line, exceeds 90 feet, the required front, each side,

and rear yard requirements shall be increased one foot for each foot the building projection

exceeds 90 feet.” 299 N.J. Super. at 87. While this ordinance may appear at first to be quite

specific, the court noted that the ordinance contained no definitions for “length of the principal

building,” “projected,” “front lot line,” or “building projection.” Id. at 96. Further, even though

the township’s engineer testified that he had developed a “consistent” procedure for calculating

setback requirements under the ordinance, the court held that this “trial and error” methodology

did not pass constitutional muster because the ordinance itself failed to “set forth an objective

and uniform method of calculating the setback required.” Id. at 96-97. The court made clear that

a “municipality cannot simply leave the entire process in the hands of its agents, no matter how

well intentioned.” Id. at 97. Here, the Parking Ordinance provides no objective standards at all

and leaves “the entire process in the hands of [Bernards Township’s] agents.”

Second, in Diocese of Metuchen v. Township of Piscataway, the plaintiff challenged an

ordinance governing cemeteries, which provided that “[o]ne parking space shall be provided for

every 300 square feet of office space plus one (1) space for every 500 square feet of

garage/maintenance area, plus 15 spaces for any area designated as proposed mausoleum area.”

252 N.J. Super. 525, 528 (N.J. Law Div. 1991) (emphasis added). The court noted that the

requirement of 15 parking spaces was the same for any mausoleum area, “regardless of the

square footage of the mausoleum or the number of crypts.” Id. at 532. The court held that the

“blanket” mausoleum requirement was invalid because it was “not based upon any criteria or


25

standards whatsoever.” Id. at 532-33. The court stated that “[i]n order to pass constitutional

muster, the township must provide a formula to determine the appropriate amount of offstreet

parking for particular uses.” Id. at 533 (emphasis added). In this case, of course, there is no

formula that governs the application of the discretion provided to the Planning Board under the

Parking Ordinance.

The Piscataway court discussed and favorably cited the third case, Associated Land &

Investment Corp. v. City of Lyndhurst, 154 N.E.2d 435 (Ohio 1958), which invalidated a parking

provision very similar to the one at issue here. The zoning ordinance at issue in Lyndhurst

specified that a business must provide “off-street parking space sufficient in capacity for the

parking at one time of at least one automobile per five persons engaged on the premises as

employees or owners.” Id. at 439 (emphasis added). It further provided that the same business

“shall have . . . parking space reasonably adequate for the commercial vehicles necessary to

carry on the business of the occupants of the premises and for the normal volume of car parking

by persons coming to the premises on matters incidental to the uses thereof.” Id. (emphasis

added). As such, like the Parking Ordinance at issue here, it provided a specific ratio but left

municipal officials free to deviate from it, requiring additional parking at their discretion. The

court found that while the section of the ordinance containing the “fixed” parking ratio was

constitutionally sound, the provisions requiring “reasonably adequate” parking for the “normal

volume” of cars was void because the law requires “sufficient criteria or standards to guide the

administrative officer or tribunal in the exercise of the discretion vested in it . . . .” Id. at 439,

440. New Jersey law contains the same requirement. Morristown, 163 N.J. Super. at 64.

There is no material distinction between the ordinance at issue in Lyndhurst and that here.

The provisions of the Parking Ordinance relied upon by the Planning Board to conduct an


26

individualized assessment of ISBR’s parking needs—the first ever individualized assessment in

the Township’s history with respect to a house of worship—provide no measures and no

standards as to how the Planning Board “may” increase parking in any situation. Township

Ordinance § 21-22.1 grants the Planning Board seemingly limitless discretion to depart from the

3:1 ratio at the Planning Board’s whim; and it provides no objective benchmarks to “prevent

arbitrary and indiscriminate interpretation.” Damurjian, 299 N.J. Super. at 96; see also

Piscataway 252 N.J. Super. at 533; Lyndhurst, 154 N.E.2d at 440. As such, it should be

invalidated under the New Jersey Constitution.

C. The Court Should Excise Only the Unconstitutionally Vague Provision

Unlike the vague clauses of Township Ordinance § 21-22.1 italicized in paragraph 357 of

the Complaint and quoted above, the ratios for various uses set forth in the ordinance—including

the 3:1 ratio for houses of worship—do not give the Planning Board unfettered discretion. Thus,

the Court should leave those provisions in place and strike only the vague portions of the Parking

Ordinance identified herein and in the Complaint. See Township Ordinance § 21-1.3 (providing

that “[i]f any section, subsection or paragraph of this chapter shall be declared to be

unconstitutional, invalid or inoperative, in whole or in part, by a court of competent jurisdiction,

such section, subsection or paragraph shall, to the extent that it is not unconstitutional, invalid or

inoperative, remain in full force and effect, and no such determination shall be deemed to

invalidate the remaining sections, subsections or paragraphs of this chapter”). Indeed, this is

precisely how the Lyndhurst court resolved the very same issue. See 154 N.E.2d at 440 (excising

only that portion of the parking ordinance that did not set forth specific criteria to guide the

municipal body’s discretion, but upholding and applying the portion setting forth specific ratios).


27

CONCLUSION

For the reasons stated above, Plaintiffs respectfully request that the Court grant their

motion for partial judgment on the pleadings as to the third, eighth, and tenth causes of actions of

the Complaint, holding (1) that Defendants are liable to Plaintiffs under 42 U.S.C.

§ 2000cc(b)(2) for all appropriate relief, including damages and equitable remedies, and (2) that

specified clauses of Township Ordinance § 21-22.1, as italicized in paragraph 357 of the

Complaint, are unconstitutional under the U.S. and New Jersey Constitutions, and therefore

Plaintiffs are entitled to application of the clear and objective 3:1 parking ratio for houses of

worship contained in that ordinance.

Dated: May 6, 2016

Respectfully submitted,

By: s/ Michael F. BuchananMichael F. Buchanan (NJ Bar #049041992)

Adeel A. Mangi (admitted pro hac vice)Muhammad U. Faridi (admitted pro hac vice)Alejandro H. Cruz (admitted pro hac vice)Diana M. Conner (admitted pro hac vice)Paul D. Swanson (admitted pro hac vice)PATTERSON BELKNAP WEBB & TYLER LLP1133 Avenue of the AmericasNew York, New York 10036Telephone No.: (212) 336-2000Facsimile No.: (212) 336-2222

Attorneys for Plaintiffs


IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEW JERSEY

THE ISLAMIC SOCIETY OF BASKING RIDGEand MOHAMMAD ALI CHAUDRY, No. 16-cv-1369 (MAS) (LHG)

Plaintiffs,

v.

TOWNSHIP OF BERNARDS, BERNARDSTOWNSHIP PLANNING BOARD, BERNARDSTOWNSHIP COMMITTEE, BARBARAKLEINERT, in her official capacity, JEFFREY

PLAZA, in his official capacity, JIMBALDASSARE, in his official capacity, JODI

ALDER, in her official capacity, JOHN MALAY, in

his official capacity; KATHLEEN "KIDDY"

PIEDICI, in her official capacity, LEON HARRIS, i

his official capacity, PAULA AXT, in her official

capacity, RANDY SA~ITORO, in his official

capacity, RICH MOSCHELLO, in his official

capacity, SCOTT ROSS, in his official capacity,

CAROL BIANCHI, in her official capacity,CAROLYN GAZIANO, in her official capacity,THOMAS S. RUSSO, JR., in his official capacity,

and JOHN CARPENTER, in his official capacity,

DECLARATION QF ADEEL A.MANGI IN SUPPORT OFPLAINTIFFS' MQTION FpRPARTIAL JUDGMENT ON THEPLEADINGS

Defendants.

ADEEL A. MANGI hereby declares:

1. I am an attorney at law of the State of New York and a member of the firm

of Patterson Belknap Webb &Tyler LLD, counsel for Plaintiffs in the above-captioned matter. I

am admitted to practice in this Court pro hac vice. I submit this declaration in support of

Plaintiffs' motion pursuant fio Fed. R. Civ. P. 12(c) for partial judgment on the pleadings.

8851812


2. Attached as Exhibit 1 is a demonstrative exhibit compiled by Plaintiffs'

counsel listing all allegations from Plaintiffs' Complaint alongside the corresponding responsive

paragraph from Defendants' Answer.

3. Attached as Exhibit 2 is a true and correct copy of Township Ordinance

§ 21-22.1 in its entirety.

4. Attached as Exhibit 3 is a true and correct copy of the joint memorandum

issued to the Bernards Township Planning Board regarding "ISBR Application —Off-Street

Parking Requirement," dated January 3, 2013 and authored by Jonathan E. Drill and David

Banisch.

I declare under penalty of perjury that the foregoing is true and correct.

Dated: New York, New YorkMay 6, 2016

Adeel A. Mangi (admitted pro hac vice)

- 2-


EXHIBIT 1

Case 3:16-cv-01369-MAS-LHG Document 31-1 Filed 05/06/16 Page 1 of 95 PageID: 406

Exhibit 1 to Plaintiffs’ Motion for Judgment on the Pleadings:Comparison of Plaintiffs’ Allegations and Defendants’ Responses

1Islamic Society of Basking Ridge, et al. v. Township of Bernards, et al.No. 16-cv-1369 (MAS) (LHG)8855254

Para. Complaint AnswerINTRODUCTION

1Plaintiffs bring this action to challenge Defendants’ denial of their application tobuild a mosque in the Township of Bernards, New Jersey (the “Township”).

After reasonable investigation, the defendantsremain without sufficient information to admit ordeny this allegation.

2

Mosques and Islam have a long history in the United States. Almost 60 years ago,President Dwight D. Eisenhower spoke at the inauguration of a mosque inWashington, D.C. He stated: “And I should like to assure you, my Islamicfriends, that under the American Constitution, under American tradition, and inAmerican hearts, this Center, this place of worship, is just as welcome as could bea similar edifice of any other religion. Indeed, America would fight with herwhole strength for your right to have here your own church and worship accordingto your own conscience. This concept is indeed a part of America, and withoutthat concept we would be something else than what we are.” Almost twocenturies before that, Thomas Jefferson similarly affirmed that he had designedthe Virginia Statute of Religious Freedom, the First Amendment’s primaryprecursor, to protect all faiths, including “the Jew and the gentile, the Christianand the Mahometan.”


3

President Barack Obama recognized these deeply-rooted American truths whilespeaking at a mosque in Baltimore earlier this year: “when enshrining thefreedom of religion in our Constitution and our Bill of Rights, our Founders meantwhat they said when they said it applied to all religions.” He added: “If you’reever wondering whether you fit in here, let me say it as clearly as I can, asPresident of the United States: You fit in here—right here. You’re right whereyou belong. You’re part of America, too. You’re not Muslim or American.You’re Muslim and American.”


4

Plaintiffs are just that. They are a small Islamic society that serves a historicallyrooted Muslim community in the Township, and its President, a Ph.D. economistwho has lived with his family in the Basking Ridge section of the Township foralmost 40 years. After decades without a spiritual home in a town filled withhouses of worship, Plaintiffs decided to build a mosque that would provide adedicated place for the local Muslim community to pray and for local children toattend Sunday School.



Exhibit 1 to Plaintiffs’ Motion for Judgment on the Pleadings


Para. Complaint Answer

5

Conscious of the intense hostility that had met recent attempts to build mosques inother municipalities, including nearby Bridgewater Township, Plaintiffspurchased a four-acre property in a zone where a house of worship was a“permitted use” under the Township’s zoning ordinance. In April 2012, ISBRapplied to the Bernards Township Planning Board (the “Board” or the “PlanningBoard”) for approval of its site plan to build a modest 4,252-square-foot mosquecontaining a 1,594-square-foot prayer hall. That application fully complied withall zoning requirements.

After reasonable investigation,, the defendantsare without sufficient information to admit ordeny the allegation that the plaintiffs were“conscious of the intent hostility...” Thedefendants admit that the plaintiffs purchased a4.088 acre property in a zone where a house ofworship was a permitted use under theTownship’s zoning ordinance. The defendantsadmit that in April of 2012, ISBR applied to theBernards Township Planning Board for approvalof its site plan. After reasonable investigation,the defendants are without sufficient informationto admit or deny the allegation that the mosquecan be characterized as modest. It is denied thatthe application fully complied with all zoningrequirements.

6

What should have been a simple Board approval for a permitted use devolved intoa Kafkaesque process that spanned an unprecedented four years and included 39public hearings. These proceedings took place against a backdrop of uglyspectacle. An anonymous flyer that circulated in town stated: “Let’s ask[Plaintiff] Ali [Chaudry] about those Koranic verses regarding Jews andChristians in your Koran. Why are so many terroristic acts propagated byMuslims? Is it something they are taught in your mosques and at home? Andwhat will you teach in your new Liberty Corner mosque?” (Emphasis in original.)A volunteer firefighter neighbor told Dr. Chaudry: “Eleven brothers died on 9/11and now you want to put a mosque next to my house with the insignia of thepeople who did that.” And perhaps the most outspoken objector to the mosque atBoard hearings, a suspended lawyer with extreme views regarding Islam, exhortedthe community to “continue to attend [Board] meetings and create awarenessamong our neighbors” while warning “about the Muslim practice of ‘taqiyya,’deceit, condoned and encouraged in the Quran.”

It is denied that the process “devolved into aKafkaesque process...” After reasonableinvestigation, the defendants are withoutsufficient information to admit or deny theallegation in this paragraph concerning theanonymous flyer and the alleged remarks by avolunteer firefighter.





7

This community opposition evolved into a well-funded machine that recruitedobjectors and coached them to channel their opposition through the permissiblelanguage of land use: parking, buffer and screening requirements, stormwatermanagement, and so on. A community group—the Bernards Township Citizensfor Responsible Development—was formed specifically to oppose the mosque. Inone instance, a trustee of the organization presented members of another areagroup with details about the mosque. As meeting minutes reflect, the participantswere cautioned not to reveal their true intentions: “Please remember do notmake any comments about the Religion or Islamic Mosque itself!! If we do sowe will loose [sic] the battle.” (Emphasis in original.)


8

Meanwhile, inside the Board’s hearings, hostile objectors raised one unreasonableand picayune land use objection after another, attempting to manufacturediscretionary bases for the Board to deny ISBR’s application even though, understate law, the Board had no such discretion. The Board and its professionalsfrequently adopted those objectors’ arguments and leveled serial demands basedon novel interpretations of the local zoning ordinance that had never been appliedto any other applicant in the Township. Nonetheless, and without regard to theunreasonable and escalating nature of the Board’s demands, Plaintiffs and theirteam of professional engineers and other experts bent over backwards to try tosecure approval. At great cost and expense, Plaintiffs dutifully revised their siteplan and brought back professionals to testify time and again, only to find that theBoard had generated yet more requirements resulting from Plaintiffs’ satisfactionof prior demands.

After reasonable investigation,, the defendantsare without sufficient information to admit ordeny the allegations concerning the motivationsof the objectors. It is denied that the Board andits professional adopted the objector arguments.It is denied that the Board’s demands wereunreasonable. After reasonable investigation,,the defendants are without sufficient informationto admit or deny allegations concerning the costand expenses incurred by the plaintiffs.

9

One objector revealed in a blog post that imposing delay and expense was adeliberate strategy aimed at getting ISBR to give up and move elsewhere: “Ourgoal is to force the township planning board to put a stay on the decision, ordernew studies, and drag the issue into Neverland . . . . Will our opponent be able tosurvive the wait? Will there be greener grass elsewhere . . . .”

After reasonable investigation,, the defendantsremain without sufficient information to admit ordeny this allegation.





10

A key early battle related to parking. The Township’s parking ordinance specifiesone parking spot for every three seats in a church. The term “church” in themunicipal ordinance is defined to encompass all houses of worship, includingmosques. ISBR’s original application accommodated a maximum of 150worshippers in its prayer hall and, accordingly, provided 50 parking spacesapplying the three-to-one ratio. The Township’s own Board Planner expresslyagreed that ISBR’s parking proposal satisfied the ordinance requirement.Objectors at public hearings, however, insisted that a different parking standardshould apply to a mosque than to a church. The Board ultimately agreed and thenexplored one novel parking methodology after another. It discarded variousdifferent formulations, even those prepared by its own Board Planner, becausethey all generated reasonable numbers of parking spaces not dissimilar to thethree-to-one ratio set forth in the parking ordinance. After much trial and error,the Board adopted a proposal from an objector that required a massive parking lotwith 107 parking spaces. This for a congregation that, at the time of application,peaked at 65 worshippers for one weekly afternoon service. The Board ignoredall of ISBR’s proposals designed to address parking concerns, including aproposal to split the largest weekly service into two services, similar to thepractice of area churches, if parking ever became a constraint due to futuregrowth.

The defendants deny that issues related toparking can be characterized as a “battle.” Theplaintiffs’ description of the Township parkingordinance is incomplete, in that plaintiffs omitthat the ordinance requires one space for twenty-four linear inches of pew space. The allegationconcerning ISBR’s original application isadmitted. It is denied that the planner expresslyagreed that ISBR satisfied the parking ordinance.It is denied that objectors insisted that a differentparking standard should apply to a mosque that achurch. It is denied that the Board agreed withobjectors and explored “one novel parkingmethodology after another.” It is denied that theBoard discarded formulations that were preparedby the Board planner. It is admitted that theBoard adopted a proposal that required 107parking spaces but denied that the proposal wasadopted from an objector. It is denied that theBoard ignored all of ISBR’s proposals.





11

ISBR nonetheless complied and generated revised site plans featuring 107 parkingspaces. Objectors and the Board then seized upon the oversized parking lot theyhad imposed as a basis to make new objections. For example, a large parking lotcreated more impervious surface, left less room for drainage improvements,required more lighting, and so on. ISBR again made every effort to accommodatethe Board’s ever-escalating demands, but to no avail. In December 2015, theBoard denied preliminary and final approval to build the mosque. Among itsbases for denial:• That ISBR’s eastern buffer area included an “aestheticallydispleasing fence,” even though ISBR’s plans provided many new evergreen treesfor natural screening and ISBR had added a fence to its site plan at the suggestionof the Board’s own planners, who proposed it to moot screening objections.• Thatheadlights from ISBR’s parking lot might be visible from a property more than200 feet to the south of ISBR’s property, even though the parking lot wasscreened by both a pre-existing heavily-wooded area and new evergreen treesproposed by ISBR, which the Board ignored.• That ISBR had failed to submitcertain stormwater management-related technical calculations to the Board, eventhough those calculations were performed by the Board’s own engineer, who hadrepeatedly confirmed that ISBR’s plans satisfied all applicable regulations.• ThatISBR had failed to specify on its plans a safe place for Sunday School drop-off,even though ISBR’s engineer had detailed drop-off plans both orally and inwriting, which featured children stepping from cars onto a sidewalk under thesupervision of a monitor at the rear of the building—the only permissible drop-offlocation per the Township’s own prior rulings.• That ISBR had failed to provideadequate fire truck access under an untenable legal theory that had been rejectedby the Board’s own attorney, fire official, and planner, and even though ISBR hadproven, using a generally-accepted computer model, that the Township’s largestfire truck could circumnavigate ISBR’s property.• That ISBR’s plans provided forlighting that was too “intense” for adjoining properties, even though ISBR’slighting was well below the limits detailed in the local ordinance and ISBRsubmitted a lighting plan showing no off-premises impact.

It is admitted that ISBR submitted a revised planwith 107 parking spaces, though a plancontaining the details required of a final site planwas never submitted. After reasonableinvestigation,, the defendants have insufficientknowledge concerning the allegation thatobjectors “Seized upon the oversized theoversized parking lot they had imposed as thebasis to make new objections.” It is denied thatthe Board “seized upon the oversized parking lotthey had imposed as the basis to make newobjections.” The plaintiffs do not quote in theirentirety the reasons for the denial of preliminaryand final site plan approval. The reasons for thedenial of the preliminary approval differed fromthe reasons for the denial of final approval. Allthe reasons are stated completely in the Board’sResolution, which is attached as Exhibit – A tothis Answer.





12

The Board’s treatment of Plaintiffs is exceptional relative to its dealings withnumerous other organizations, both religious and secular, going back over twodecades. The Township’s land use boards have routinely granted approvals toother site plan applicants under circumstances where ISBR was denied. And theBoard subjected Plaintiffs to uniquely harsh and adverse treatment that contrastssharply with how it has treated other applicants, including churches, synagogues,and schools.

All of the allegations in this paragraph aredenied

13

But Defendants’ zeal to prevent ISBR from establishing a spiritual home did notstop at the Board. Defendants recognized that a simple denial of Plaintiffs’application would have allowed for a renewed application. Accordingly,Defendants also changed the rules wholesale.

All of the allegations in this paragraph aredenied.

14

In the fall of 2013, at the instigation of the same suspended lawyer-objector,Defendants amended the local zoning laws to make it more difficult—and apractical impossibility for Plaintiffs—to build a house of worship in theTownship. The new zoning ordinance made houses of worship a “conditionallypermitted use,” and required them to, among other things, have a minimum of sixacres of land, meet draconian restrictions on parking and setbacks, and maintainprimary access from state or county roadways. When local Christian leadersobjected to the new law, Defendants assured them that they would be“grandfathered” in and that the new law would bar only new religious groupstrying to gain entrance to the Township community. As community members atthe meeting unaffiliated with Plaintiffs immediately recognized, “this is beingdone as a reaction to the Muslim community” and “the whole bugaboo aboutIslam.”

The allegation that the defendants amended thelocal zoning law at the instigation of a suspendedlawyer-objector is denied. It is admitted that thenew zoning ordinance made houses of worship aconditionally permitted use. It is admitted thatthe new zoning ordinance required a minimumof six acres of land but it is denied that theordinance imposed “draconian restrictions onparking and setbacks.” After reasonableinvestigation,, the defendants are withoutsufficient information to admit or deny theallegation in this paragraph concerningcommunity members at the meeting unaffiliatedwith the plaintiffs.

15

On December 8, 2015, the Board voted to deny Plaintiffs’ application. Just over amonth later on January 19, 2016, the Board issued its formal resolution of denial.In combination with the new ordinance restricting houses of worship, the Boardhad done its part to prevent there ever being a mosque in the Township.

It is admitted that on December 8, 2015, theBoard voted to deny the plaintiffs’ application. Itis admitted that a resolution was adopted onJanuary 19, 2016. It is denied that the Board“had done its part to prevent there ever being amosque in the Township.”





16

A local news report described the scene when community members, havingpacked the Board meeting, learned of the denial: “‘Party! Party! Party!’ yelledone Church Street resident as she jumped up and down outside with otherresidents in a circle. They hugged, cheered and danced at the decision. ‘Yes I’mhappy,’ [a local resident] who lives on Church Street said. ‘I wish them the bestof luck and hope they find a property with six-plus acres to build. Or I hear theyare building a mosque in Bridgewater, they can go there.’”

After reasonable investigation,, the defendantsare without sufficient information to admit ordeny the allegations in this paragraph.

JURISDICTION AND VENUE

17

Plaintiffs’ federal claims arise under 42 U.S.C. § 2000cc and 42 U.S.C. § 1983.This Court has jurisdiction over this action under 28 U.S.C. § 1331. The Courthas supplemental jurisdiction over Plaintiffs’ state-law claims under 28 U.S.C. §1367(a). These state-law claims arise from the same set of facts andcircumstances as Plaintiffs’ federal claims and are so related to those claims thatthey form part of the same case or controversy.

Admitted.

18Venue properly lies in this District pursuant to 28 U.S.C. § 1391(b)(2), becausethe events giving rise to this action occurred in the Township of Bernards, whichis located within the District of New Jersey.

Admitted.

THE PARTIES: A. Islamic Society of Basking Ridge

19

Plaintiff ISBR, founded in 2011, is a not-for-profit religious congregationorganized under the laws of New Jersey. ISBR’s mission is to provide a religious,educational, cultural, and social community for Muslims living or working in theTownship and the surrounding areas. ISBR aims to create an open, diverse,inclusive, and moderate environment for men, women, and children to practice theIslamic faith.


20

ISBR actively promotes interfaith dialogue in order to improve relations betweenMuslims and people of other faiths. ISBR also regularly engages with other faithgroups and secular affiliations in community-based efforts to reduce the effects ofpoverty and hunger. For example, ISBR participates in an ongoing program ofservice to homeless veterans through the Lyons V.A. Hospital located in theTownship, participates in the Hunger Van project of Muslims Against Hunger bypreparing meals for distribution in the New York and New Jersey area, and is aco-sponsor of Fighting Poverty with Faith, a nationwide interfaith program thatcombats poverty.





Para. Complaint AnswerB. Mohammad Ali Chaudry

21

Plaintiff Mohammad Ali Chaudry, Ph.D., is a founder of ISBR and currentlyserves as its President. Dr. Chaudry grew up in Pakistan and graduated from theLondon School of Economics in 1967. He then came to the United States as anexchange student and earned a Ph.D. in economics from Tufts University in 1972.Dr. Chaudry spent his professional career at AT&T, where he worked for 30 yearsas an economist and strategic planner, rising to the level of Chief FinancialOfficer of AT&T’s Public Relations Division. He also lectured at RutgersUniversity from 2004 to 2014 on topics including leadership, multinationalbusiness management, applied business statistics, and business policy.


22

Dr. Chaudry has a long history of community engagement. He was elected toserve on the Bernards Township Board of Education from 1990 to 1995. From1996 to 1998, he headed-up a volunteer task force and advisory board to create theBernards Township Community Center for the benefit of all Township residents.In November 2001, Dr. Chaudry was elected a member of the Bernards TownshipCommittee, where he served two three-year terms in office from 2002 to 2007.Dr. Chaudry served as Deputy Mayor of the Township in 2003 and as its Mayor in2004. Dr. Chaudry is believed to have been the first Pakistani-born mayor of amunicipality in the United States.

It is admitted that plaintiff Chaudry served onthe Board of Education and an advisory Board tocreate the Community Center. It is admitted thatplaintiff Chaudry was elected to the TownshipCommittee in November of 2001 and theallegations concerning the positions plaintiffChaudry occupied are admitted. After reasonableinvestigation,, the defendants were withoutsufficient information to admit or deny theallegation that Dr. Chaudry is the first Pakistaniborn Mayor of a municipality in the UnitedStates.

23Dr. Chaudry serves as the President of the Branchburg Rotary Foundation, whichfacilitates the charitable activities of the Branchburg Rotary Club and RotaryInternational. He is also a member of the Branchburg Rotary Club.


2424. In 2013, the Governor of New Jersey appointed Dr. Chaudry to a three-yearterm as Commissioner on the New Jersey Commission on National andCommunity Service.

Admitted.





25

Dr. Chaudry regularly speaks publicly to religious organizations and communitygroups on the topic of encouraging interfaith communication and dialogue. Since2012, Dr. Chaudry has served on the New Jersey Attorney General’s OutreachCommittee for the Muslim Community, which was created to build a relationshipof mutual trust and understanding between law enforcement and the Muslimcommunity. In fall 2013, Dr. Chaudry became part of the team of interfaithinstructors offering cultural awareness training at the New Jersey State PoliceAcademy. Since March 2015, Dr. Chaudry has also served on the InterfaithAdvisory Council of the New Jersey Department of Homeland Security andPreparedness.

Admitted.

C. Township of Bernards

26Defendant Township is a municipality, chartered under the laws of the State ofNew Jersey, and located in Somerset County, New Jersey.

Admitted.

D. Bernards Township Committee

27

Defendant Bernards Township Committee (the “Township Committee” or the“Committee”) is the legislative and executive body of the Township. TheCommittee is comprised of five members, elected by Township residents inpartisan elections for three-year terms of office. The Committee elects the Mayorof the Township from among its five members.

Admitted.

28Defendants Carol Bianchi, Carolyn Gaziano, Thomas S. Russo, Jr., John Malay,and John Carpenter are all currently members of the Committee, and are joinedherein as Defendants in their official capacities.

Admitted, though there is no legal basis to joinany of the defendants in their official capacities.

E. Bernards Township Planning Board

29

Defendant Bernards Township Planning Board is an agency of the TownshipCommittee, and its 11 members include the Mayor (or the Mayor’s designee),residents appointed by the Mayor, and one member of the Township Committee.The Board is responsible for preparing and adopting a Township Master Planunder New Jersey state law, and for reviewing land use development within theTownship. The Board is charged by the Township with reviewing subdivisions,site plans, planned developments, conditional uses, and certain variances. TheBoard also reviews and recommends revisions to the land use ordinance to theCommittee. The Board shares jurisdiction over administration and application ofthe Township’s zoning ordinance with the Township’s Zoning Board ofAdjustment (“Zoning Board”).

Admitted.





30

Defendants Barbara Kleinert, Jeffrey Plaza, Jim Baldassare, Jodi Alper, JohnMalay, Kathleen “Kippy” Piedici, Leon Harris, Paula Axt, Randy Santoro, RichMoschello, and Scott Ross are all members of the Board, and are joined herein asDefendants in their official capacities.

Admit that all individuals listed are currentmembers of the Board, but only members Apler,Kleinert, Piedici, Plaza and Santoro participatedin hearing and voted on the application.

OVERVIEW OF APPLICABLE LAW

31

Plaintiffs bring this action to enforce their rights under the Religious Land Useand Institutionalized Persons Act, 42 U.S.C. § 2000cc, the First and FourteenthAmendments to the U.S. Constitution, the New Jersey Constitution, and NewJersey state law.

This is the plaintiffs’ description of whatplaintiffs believe to be the basis of theirComplaint, and as such, no response is required.To the extent the plaintiffs mean to imply in thisparagraph there are facts which support theirlegal conclusions, the facts are denied.

A. The Religious Land Use and Institutionalized Persons Act

32

The Religious Land Use and Institutionalized Persons Act (“RLUIPA”) wasunanimously passed by the U.S. Congress and signed into law on September 22,2000. Congress passed RLUIPA after three years of hearings in the late-1990s.Those hearings revealed “massive evidence” of widespread discrimination againstreligious persons and organizations by state and local officials in land usedecisions. “[T]he motive is not always easily discernible, but the result is aconsistent, widespread pattern of political and governmental resistance to a corefeature of religious exercise: the ability to assemble for worship.” Congressnoted that zoning laws often place the ability of religious groups to assemble forworship “within the complete discretion of land use regulators,” who often have“virtually unlimited discretion in granting or denying permits for land use and inother aspects of implementing zoning laws.” RLUIPA’s Senate sponsors alsoobserved that “[c]hurches and synagogues cannot function without a physicalspace adequate to their needs and consistent with their theological requirements.”

It is admitted that the plaintiffs accurately, butincompletely, quote from the record.





33

RLUIPA complements the protections endowed on religious exercise by the FirstAmendment by prohibiting, in relevant part, four types of conduct in theimposition and implementation of land use regulations. First, RLUIPA prohibitsthe implementation of land use regulations in a manner that imposes a substantialburden on the religious exercise of a person or religious institution, in the absenceof a compelling state interest achieved by the least restrictive means. Second,RLUIPA prohibits implementation of a land use regulation in a manner that treatsa religious assembly or institution on less than equal terms with a nonreligiousassembly or institution. Third, RLUIPA prohibits discrimination on the basis ofreligion in the imposition or implementation of any land use regulation. Fourth,RLUIPA prohibits the imposition or implementation of a land use regulation thatunreasonably limits religious assemblies, institutions, or structures within ajurisdiction. Additionally, pursuant to 42 U.S.C. § 1988(b), prevailing plaintiffsunder RLUIPA are eligible for an award of attorneys’ fees.


B. The First and Fourteenth Amendments to the U.S. Constitution and the New Jersey Constitution

34

The First Amendment to the U.S. Constitution, as incorporated through theFourteenth Amendment, prohibits state and local governments from taking anyaction that unduly infringes on the free exercise of religion. The Free ExerciseClause limits enforcement of laws that impose a substantial burden on the exerciseof sincerely held religious beliefs.


35

The Fourteenth Amendment, directly applicable by its terms to state and localgovernments, guarantees “the equal protection of the laws” to all individuals. TheEqual Protection Clause strictly limits a state or local government’s ability todistinguish individuals or groups on the basis of, among other things, religion.The Due Process Clause prohibits statutes that fail to provide people of ordinaryintelligence a reasonable opportunity to understand the conduct governed thereby,as well as statutes that authorize or encourage arbitrary or discriminatoryenforcement.


36

The New Jersey Constitution provides protections that overlap with thoseguaranteed by the U.S. Constitution.





Para. Complaint AnswerC. The New Jersey Municipal Land Use Law

37

Under the New Jersey Municipal Land Use Law (“MLUL”), a developer mustobtain preliminary and final approval of a site plan from a planning boardestablished by a municipality. For preliminary approval, the applicant mustsubmit site drawings, preliminary architectural plans, and engineering documentsin “tentative form for discussion purposes.” Upon submission of a completeapplication for a site plan like ISBR’s, the planning board must grant or denypreliminary approval within 45 days of the date of such submission or within anyadditional time consented to by the developer.

It is admitted that under the New JerseyMunicipal Land Use Law (“MLUL”) adeveloper must obtain preliminary and finalapproval of a site plan from a planning Board,except that it can also be from a zoning Board ofadjustment under certain circumstances. Thedefendants deny the plaintiffs’ conclusion that anapplicant must submit site drawings preliminaryarchitectural plans, and engineering documentsin “tentative form for discussion purposes.” Theapplicant may submit such documents but theapplicant has the burden of proving through thedocuments that it is entitled to the approvalssought. The defendants admit that uponsubmission of a complete application for a siteplan, the planning Board must grant or denypreliminary approval within forty-five days,except that the applicant may consent toextensions, which is what the applicant did inthis case, and there are also exceptions if theproposed development is more than ten acres,which is not the case here.

38

For a permitted use like ISBR’s, so long as the application complies with themunicipal land use ordinance, or the application can be conditioned to complywithout “substantial amendment,” the planning board must grant preliminaryapproval. But if the application does not comply with a particular zoningordinance, the applicant must seek either a variance or an exception, depending onthe type of non-compliance at issue.

This is admitted, except that there can beexceptions which apply in this case.





39

Once preliminary approval is granted, the right to develop the land vests in theapplicant for a limited period of time, during which the applicant may satisfy anyconditions of approval that the planning board imposed and then seek finalapproval. The planning board may not modify or add conditions once preliminaryapproval is granted. A planning board must grant final approval once theapplicant’s detailed drawings, specifications, and estimates conform to the localordinances and the conditions of preliminary approval.

Admitted, except that provision of an ordinancerelating to health and public safety may apply atthe time an applicant seeks final site planapproval.

40

In addition to requiring a predictable and standard-driven system of zoningregulations across New Jersey, the MLUL forbids decisions by local planningboards that are arbitrary, capricious, or unreasonable. It also limits the standardby which a land use board can review an application to the specific land useordinances of the relevant municipality.

It is admitted that the New Jersey case lawforbids decisions by local planning Boards thatare arbitrary, capricious or unreasonable. Thedefendants deny the statement in this paragraphthat the MLUL “limits the standard by which aland use Board can review an application to thespecific land use ordinances of the relevantmunicipality.”

FACTSA. ISBR Has No Adequate Facilities for Muslim Worship in the Township

41

Dedicated sacred place of worship. Islam requires that a mosque be a sacredspace dedicated to prayer and worship of God. Consistent with the teachings ofIslam, ISBR’s members believe there is substantial value to gathering forcongregational prayer in a mosque, which they currently do not have in theTownship. Without a dedicated, sacred space in which to worship God as acongregation, ISBR’s members cannot fully realize their Islamic faith.

After reasonable investigation,, the defendantsare without sufficient information to admit ordeny this allegation.

42

Prayer. Islam requires Muslims to pray five times a day. During prayer,worshippers must face in the direction of Mecca, Saudi Arabia, the holiest site inthe Islamic faith. The Friday afternoon prayer service, referred to as Jumma, isthe most important service of the week. Muslims also engage in various otherspecial prayers, such as evening prayers during the Islamic holy month ofRamadan, prayers on Islamic holidays, and funeral prayers.


43

For over eight years, ISBR has held most Jumma services in the Township’sCommunity Center (“Community Center”), a facility that Plaintiffs must rent fromthe Township. ISBR rents the Community Center for only one service per week,its Friday Jumma service. ISBR members have no place to gather for prayersduring the rest of the week or for special prayers.






44

Even as to Jumma services, the Community Center is not available to ISBR year-round. During July and early August of each year, the Township uses theCommunity Center for public summer programs, forcing ISBR to rent space fromthe Township in Harry Dunham Park, a local public park.


45

The Community Center also has significant limitations as a place of worship. Amosque has a single prayer hall enabling all worshippers to pray in a singlecongregation, and to see and hear the imam leading the prayer. By contrast, theCommunity Center layout, with two buildings separated by a patio, forces ISBRto split the congregation between the two buildings such that less than half of theweekly congregation can see and hear the imam directly. The remaining membersof the congregation cannot see the imam and are only able to hear him via anaudio link between the two buildings. If the link malfunctions, half of ISBR’scongregants miss portions of the service altogether.


46

At both the Community Center and the public park, ISBR members are requiredto set up and break down their worship supplies—including the audio system thatallows congregants to listen to the prayer service—each week. This involves acumbersome process of transporting and storing these supplies. For years, Dr.Chaudry or another volunteer has hauled these supplies back and forth for Jummaservices. For that reason, the congregation has come to call Dr. Chaudry’s car the“mosque-mobile.”


47

Further, ISBR cannot, as a practical matter, rent the Community Center on acontinual basis as would be necessary to use it for all religious activities, such asthe five daily prayers required by Islam. The Community Center also has timingrestrictions and therefore cannot be used for special prayers conducted during theholy month of Ramadan. ISBR must also rent separate facilities with suitablespace for special Islamic holiday prayers.


48Both the Community Center and Harry Dunham Park are inadequate for Muslimworship; ISBR’s members are unable to fully exercise their faith and meet theirspiritual needs.


49

Wudu. Islam requires a ritual ablution called wudu prior to each prayer. Thisritual cleansing involves cleaning of the face, arms, and feet, necessitating amplespace, specially designed wash basins, and access to clean water. A mosquecontains a wudu area designed and devoted to this ritual cleansing prior toprayers. Neither the Community Center nor Harry Dunham Park containsappropriate facilities for performing wudu.






50

Imam. ISBR’s lack of a dedicated, sanctified place for prayer makes itsubstantially more difficult to attract a permanent imam, a leader of a Muslimcongregation, who would lead its prayer services and address the congregation’sspiritual needs. Like a pastor in a Christian church or a Rabbi in a Jewishsynagogue, an imam is a central figure in a Muslim congregation, and apermanent imam is important to ISBR’s full enjoyment of its religious rights. Apermanent imam would strengthen ISBR’s religious community and provideguidance to individuals and families. If ISBR were able to build a mosque, itcould, in due course, attract a permanent imam to lead prayer services and attendto the spiritual needs of ISBR’s members.


51

Religious educational services for children. As in other faiths, proper religiouseducation for children is essential in Islam. A stable and central location for faith-based education provides a religious congregation’s children the opportunity tolearn and experience their faith in a manner consistent with the faith’s tenets. Atthe time of its application and today, ISBR has rented space at different locationsin the Township for its Sunday School. It was initially housed at the CommunityCenter, but that space became inadequate. It was then housed at a local YMCA,but ISBR was unable to rent sufficient space for its Sunday School on a regularbasis at that location as well. ISBR currently pays certain fees to use space in alocal elementary school each Sunday, but it is not able to use all areas of even theclassrooms available to it. The current location does not allow for storage ofsupplies or consistent use of permanent teaching tools, requiring both teachers andchildren to supply all necessary materials and equipment anew each Sunday.ISBR lacks a stable location in which to provide proper religious education to thecongregation’s children.


52

Inability to pray in a congregation. Due to the required timing of Islamic prayersthroughout the day, and the required timing of Jumma services in the middle ofFriday afternoon, close proximity to a mosque is essential for practicing Muslims.The nearest mosque to the Township is a thirty-minute drive from most parts oftown. Without a mosque in the Township, ISBR and its members are unable toengage in congregational worship in a timely manner consistent with theirsincerely held beliefs.





Para. Complaint AnswerB. ISBR’s Search for a Permanent Spiritual Home in the Township

53

In 2008, the Township Muslim community, in an effort spearheaded by Dr.Chaudry, first began to search for a property on which to build a mosque. Thepurchase of the property and subsequent construction were to be funded by avariety of means, including donations from congregants and loans from financialinstitutions. The budget for the purchase of the property was approximately$750,000


54

Dr. Chaudry was aware that attempts to build mosques in other areas had facedcommunity opposition, including on zoning issues. He sought to purchase aproperty zoned as residential because a house of worship was a “permitted use” inall residential zones of the Township. Dr. Chaudry sought to avoid the need forany zoning variances. For example, ISBR sought to ensure that the contemplatedlot exceeded the minimum acreage—three acres—required for a house of worshippursuant to the Township’s zoning ordinance to avoid needing a variance.


55

In or around 2010, Dr. Chaudry identified a property located at 124 Church Streetin the Liberty Corner section of the Township (the “Property”). The Property,located in the R-2 residential zone, is designated as Block 9301, Lot 2 on theTownship’s tax maps. It contained (and still contains) a single-family home and adetached structure situated on 4.08 acres of land. The Property met allrequirements of the Township’s zoning ordinance for a house of worship to bepermitted in a residential zone as of right.

The defendants are without sufficientinformation to admit or deny the allegation as towhen Dr. Chaudry identified a property locatedat 124 Church Street. It is admitted that theproperty in question contains a single familyhome and detached structure on 4.08 acres ofland. It is denied that the property met either allthe requirements of the Township’s zoningordinance or chapter 21, Article V, DevelopmentRegulations for a house of worship to bepermitted in a residential zone as of right.

56The Township contains a designated historical district referred to as the LibertyCorner Historic District. The Property is not located within the Liberty CornerHistoric District.

Admitted.





57

The Property is located in a residential zone containing a mix of single-familyhomes, institutional uses, and commercial uses. Across the street from theProperty is a fire station, the Liberty Corner Fire Company, and its immediateneighbors to the east and west are single-family residences. Within a half-mile ofthe Property, there is a church, an elementary school, a large public park, an autobody shop, and a gas station. Within one mile of the Property, there is a postoffice, a doctor’s office, a yoga studio, a bakery, multiple restaurants, and otherretail establishments. Some of these establishments are located inside the LibertyCorner Historic District.

Admitted.

58

There are at least 10 houses of worship located in residential zones in theTownship. Those houses of worship include the following: (a) Liberty CornerPresbyterian Church; (b) Congregation B’nai Israel (also known as Somerset HillsJewish Center); (c) Chabad Jewish Center; (d) Millington Baptist Church; (e)Covenant Chapel Reformed Episcopal Church; (f) St. James Catholic Church; (g)St. Mark’s Episcopal Church; (h) Basking Ridge Presbyterian Church; (i)Somerset Hills Lutheran Church; and (j) Somerset Hills Baptist Church. Of thosehouses of worship, the following are located on properties abutting single-familyresidences: (a) Liberty Corner Presbyterian Church; (b) Chabad Jewish Center;(c) Millington Baptist Church; (d) Covenant Chapel Reformed Episcopal Church;(e) St. Mark’s Episcopal Church; (f) Somerset Hills Lutheran Church; and (g)Somerset Hills Baptist Church.

Except that the Liberty Corner PresbyterianChurch property is partially located in a businesszone described in this paragraph, the otherallegations in this paragraph are admitted.

59

On November 9, 2011, ISBR purchased the Property for $750,000. Dr. Chaudrypersonally guaranteed the mortgage obtained to finance the purchase of theProperty. Following its purchase of the Property in November 2011, ISBR beganplanning the construction of a small mosque to accommodate its congregation’sprayer services and to house its Sunday School. ISBR hired a team of experts—including civil and traffic engineers, architects, land surveyors, planners, andattorneys—to develop and draft a fully compliant site plan, architectural plans,and related documents for submission to the Board.

It is admitted that ISBR purchased the propertyon November 9, 2011 for $750,000.00. Afterreasonable investigation,, the defendants arewithout sufficient information to admit or denythe remaining allegations in this paragraph.




Para. Complaint AnswerC. ISBR Applies to the Board for Preliminary and Final Site Plan Approval

60

By the time ISBR purchased its Property, controversy had erupted over a Muslimcongregation’s attempt to build a mosque in nearby Bridgewater Township, NewJersey. Eager to avoid any similar problems, ISBR sought to work closely withthe Board, the Board’s professional staff, and ISBR’s future neighbors to preemptand address any legitimate concerns. To that end, prior to submitting itsapplication to the Board, ISBR reached out to its neighbors on Church Street andheld two open houses to share its plans.

After reasonable investigation,, the defendantsare without sufficient information to admit ordeny the allegations in this paragraph, exceptthat the defendants admit that prior to submittingits application to the Board, ISBR reached out toits neighbors on Church Street and held twoopen houses to share its plans.

61

ISBR also contacted the Board and certain engineering and planning staff of theTownship to solicit informal feedback regarding ISBR’s preliminary plansthrough a work session on January 17, 2012. Based on that work session with theBoard, ISBR decided to abandon its original plan to renovate the existing structurein favor of building a new structure that complied with the setback requirementsof the Township’s ordinance.

Admitted.

62

On April 20, 2012, ISBR submitted its application for preliminary and final siteplan approval for a new structure and parking lot that were designed to complywith all applicable requirements of the Township’s zoning ordinance. ISBR’sapplication (dated April 28, 2012 and revised slightly as of July 5, 2012) proposedconstruction of a 4,252-square-foot mosque on the Property—approximately thesize of a large single-family home similar to many in the area. The architecturalplans depicted a building containing a 1,594-square-foot prayer hall, a wuduroom, a multi-purpose room, an entry gallery, a kitchen, and an administrativeoffice. The site plan included 50 parking spaces, drainage basins to handlestormwater runoff, a circular driveway, and screening around the Property tomaintain a barrier between the parking lot and neighboring residential lots, asrequired by the Township’s zoning ordinance. The plan also complied withacreage, setback, and lot-dimension requirements, as well as lot-coveragelimitations, all front, side, and rear yard setback requirements, and restrictions onthe height, square-footage, and location of the building.

It is admitted that on April 20, 2012, ISBRsubmitted its application for a preliminary andfinal site plan approval. It is admitted that theapplication proposed construction of a 4,252square foot mosque on the property. The otherallegations in the paragraph are admitted exceptthe claims that the plans complied with theTownship zoning ordinance.





63

The exterior appearance of ISBR’s proposed mosque was designed to fit into aresidential neighborhood. ISBR’s architect chose to omit a traditional dome fromhis mosque design, and opted for discreet minarets on the sides of the building ina form that mimics residential chimneys. The minarets were also designed to belower in height than any church steeples in the surrounding area. In addition, thearchitect designed a lower roof line on the side of the building facing the street inorder to minimize its visual impact. Finally, the architect used features such as a“hipped roof,” which is common in nearby homes and other buildings.

After reasonable investigation,, the defendantsare without sufficient information to admit ordeny any allegations concerning the reasons forISBR’s design choices.

64

ISBR’s architect originally estimated the maximum occupancy of the mosque’s1,594-square-foot prayer hall at 150 people. The parking lot proposed in ISBR’sinitial application contained 50 parking spaces, which was a number calculatedpursuant to the Township parking ordinance applicable—and historicallyapplied—to houses of worship.

It is admitted that ISBR’s architect estimated themaximum occupancy of the mosque’s 1,594square foot prayer hall at 150 people. Theremaining allegation in this paragraph is denied.

65

Once ISBR’s application was deemed complete and ready for consideration by theBoard’s staff, the Board began public hearings on the proposed site plan. Thosehearings commenced on August 7, 2012 and did not end until the denial of ISBR’sapplication on December 8, 2015. In total, the Board held 39 public hearings overthree-and-a-half years after ISBR’s initial submission. The period of time fromthe initial Board work sessions to the issuance of a final resolution was four years.

Admitted.

66

The Board has never in its history held anywhere near as many public hearings onan application for site plan approval submitted by any organization, religious orsecular, let alone for an as-of-right use. By contrast, the Board regularly approvesmajor site plan applications and major subdivisions, including requests forvariance relief from the zoning ordinance, in one or just a few meetings.

The defendants admit that the Planning Boardhas never held as many hearings for any otherprevious applicant. The defendants deny that thePlanning Board regularly approves major siteplan applications or major subdivisions in one orjust a few meetings.

D. Community Opposition and Anti-Muslim Animus

67

As soon as ISBR stated its intention to build a mosque in the Township, vocalelements within the community responded with hostility. It soon became clearthat opposition to ISBR’s mosque proposal was substantially grounded in anti-Muslim animus.

After reasonable investigation, the defendantsare without sufficient information to admit ordeny this allegation





68

The first overt hostile act occurred right after a local newspaper (TheBernardsville News) announced that ISBR would present initial plans for amosque at a January 17, 2012 meeting with the Board. On January 13, 2012, anunknown individual knocked over and stomped on ISBR’s mailbox. See Figure 2.That mailbox bore the letters “ISBR,” and was the only sign identifying theProperty as associated with ISBR. Dr. Chaudry reported this act of vandalism tothe police.

After reasonable investigation,, the defendantsare without sufficient information to admit ordeny the allegations in this paragraph, exceptthat the defendants admit that Dr. Chaudryreported the act of vandalism to the police.

69

A few days later, on January 17, 2012, many community members attended theBoard work session on ISBR’s application to oppose ISBR’s plans, even thoughISBR had not yet filed a formal application and no public comment waspermitted. Right after that meeting, one of ISBR’s neighbors, a volunteerfirefighter whose lot abuts the Property to the west, verbally accosted Dr. Chaudryin the parking lot, and stated, “Eleven brothers died on 9/11 and now you want toput a mosque next to my house with the insignia of the people who did that.”That neighbor spoke in opposition to ISBR’s application at multiple Boardhearings

It is admitted that many community membersattended the Board work session on ISBR’sapplication on January 17, 2012. Afterreasonable investigation,, the defendants arewithout sufficient information to admit or denythe other allegations in this paragraph.

70

When formal Board hearings began on August 7, 2012, nearly eight months afterISBR’s work session with the Board, they took place in an atmosphere ofpronounced hostility. Large crowds attended the Board’s meetings to expressopposition to ISBR’s proposal. The Board asked for police to be present to ensuresecurity. The Board also allowed members of the public to engage in aggressiveand misguided questioning of ISBR witnesses. For example, communitymembers questioned ISBR witnesses about whether ISBR’s members would usethe Property for animal sacrifices. Lori Caratzola, one of the most fervent andpersistent objectors at Board hearings on ISBR’s application, despite living morethan two miles from the Property, presented the Board with the peculiar claim that“100 billion animals are sacrificed in the name of Islam in the United States everyyear.” The Board also heard testimony that the mosque may place a “burden onpolice forces if there’s anything that’s to be addressed that may be outside of ourlaw.”






71

A town resident unaffiliated with ISBR, who witnessed the Board’s first hearing,wrote a letter to the Editor of The Bernardsville News, noting that “what painedme was the level of distrust and lack of respect expressed by some questioners.”She urged the community to “remember that the society’s representative at themeeting, Ali Chaudry, served our community on the school board and was mayorof the town, and that the members of the society are as sincerely committed totheir religion as many of us are to ours.” She urged “respect for everyone in ourpluralistic community.”

After reasonable investigation, the defendantsare without sufficient information to admit ordeny this allegation.

72

Her appeal fell on deaf ears. Shortly before that first hearing, a flyer wasanonymously distributed throughout the local community. Among other things, itstated:So, welcome to the neighborhood, Ali [Chaudry]. Let’s ask Ali about thoseKoranic verses regarding Jews and Christians in your Koran. Why are so manyterroristic acts propagated by Muslims? Is it something they are taught in yourmosques and at home? And what will you teach in your new Liberty Cornermosque? You wouldn’t lie to us, would you? Taqiyya is wrong, right?(Emphasis in original.)


73

Similar sentiments were expressed online. In response to an August 9, 2012article regarding ISBR’s application on the Patch local news website for BaskingRidge (http://patch.com/new-jersey/baskingridge), a commenter posting under theusername “LC” described monitoring ISBR’s Jumma services in Harry DunhamPark to count participants. This came two days after Ms. Caratzola, whose initialsare “LC,” had questioned Dr. Chaudry at the initial Board hearing about allegedviolations of the fire code in Harry Dunham Park during ISBR’s Jumma services.“LC” then commented as follows:I went on the websites of some other NJmosques and they have activities at 1 and 2 in the morning! Look up the schedulesat the Boonton mosque, which Choudry [sic] offered as a similar type of facility towhat he plans: http://jmic.org/ And - remember the Imam of the Passaic Countymosque is wanted in Israel for being a member of Hamas and is on the HomelandSecurity’s deportation list. Chris Christie is a fan of his. Read a little here andask yourself if this is what we want in Basking Ridge:https://www.familysecuritymatt . . . Remember - Chaudry said they would havelecturers and visiting imams. So, we really don’t know who he’ll be inviting intothe community.






74

“LC” also exhorted the local community to attend the Board meetings and opposethe mosque by focusing on land use issues:• We must continue to attend PB meetings and create awareness among ourneighbors. Sadly, all the PB can consider is whether ISBR is in compliance withthe ordinance. There’s a lot of important information we’re not allowed topresent. For instance, Chaudry is a proponent of Islamic Society of NorthAmerica (ISNA). . . . ISNA is a front for the Muslim Brotherhood . . . also learnabout the Muslim practice of “taqiyya,” deceit, condoned and encouraged in theQuran. Raymond Ibrahim, an Islamic scholar who has the advantage of beingfluent in Arabic, has written an article called “Tawriya: ‘Creative Lying’Advocated in Islam” available on www.gatestoneinstitute.org. I think Chaudryprovided us an example of it when questioned by Mr. Orr Tuesday. Another greatresource is ‘Sharia Law for Non Muslims’ by the Center for the Study of PoliticalIslam. ($8 on Amazon -easy, short read) Read Pamela Geller. Go to ISBRI.organd see their posted Quran verses calling nonMuslims ‘the worst of beasts’ andmore. Importantly- let’s get together! If on FB - go to PreserveLibertyCornerpage so we can unite. They’re united - we should be!• Frankly, I think it’s a shame and unjust that we cannot have an open discussionof ISBR’s possible connections and intent in an open forum. But, yes, for thepurpose of the Board, we must focus on whether they are compliant with theordinance.• I’m more concerned with Islam’s twenty year plan for the current century. Aswe sit in our homes this morning, people (Muslims, too) are being raped, tortured,and killed in the name of Islam. I can tell from your comment that youunderstand. Please attend all Board meetings and join the mailing list atwww.btcrd.org to receive update. Have a nice day. : )


75

Other apparent community members on the same Patch community websitecontinued to voice anti-Islamic sentiments through the second half of 2012. Forexample, one commentator on an article about the ISBR proposal stated: “Don’tyou realize that the goal of Muslim radicals is to TAKE OVER THE WHOLEWORLD and enforce Sharia law! Are you THAT misinformed!? Do yourhomework! When radical Islam realized they couldn’t win by turning planes intomissiles, they are now choosing the way of INFILTRATING our country . . . youare really naive to think this is not their mission.”






76

Other commenters on Patch articles about the ISBR mosque in the same timeperiod made more specific but equally false attacks against Plaintiffs:• When AliChaudry was in office the [Board of Education] did not allow a moment of silencefor the victims on 9/11. . . . I submitted an earlier comment and sent a letter to theRHS administration to insure [sic] we Never forget. Something Ali would like usall to forget and methphorically [sic] build on the site where victims lived. • TheMosque discriminates women [sic]. Women are not allowed to prayer [sic] withthe men. Ali Chaudry said at the meeting he is abiding by the laws andconstitution of the US. . . . I can prayer [sic] at any church in this town whether itbe Catholic, Presbyterian, Methodist, etc and not be turned away. Why would wewant a mosque in Basking Ridge for a religion that discriminates [sic] womenpraying with men. • [A]s a woman, I have an issue with any institution that treatsits women unfairly. I’m glad that I looked into this matter and intend to attend theupcoming meeting on September 4th. If anyone knows where to get the ‘preserveliberty corner’ sign, please let me know. I will proudly display it on my property.


77

In the Board’s hearings, meanwhile, similar views were expressed in veiled terms.In an October 2012 Board hearing, for example, the Board heard testimony thatISBR’s members are a “different kind of population instead of the normal Judeo-Christian population.”


78

Insight into the objectors’ motives and actions came when Ms. Caratzola plainlystated her true motives for a 2013 article in Shoe Leather Magazine: “I don’t wanta mosque anywhere in my town quite frankly.” Further, “[i]f I came in there andlet [the Board] know I found out that [ISBR] had money from Hamas, thatwouldn’t even matter to the board because they can’t consider anything but landuse.”


79

Ms. Caratzola is listed as a supporter on the website of the American PublicPolicy Alliance (“APPA”), an advocacy group that claims “one of the greatestthreats to American values and liberties today” comes from “Islamic Shari’ahlaw,” which APPA claims is “infiltrating our court system.” She is identifiedamong “Community Leaders for American Laws for American Courts” with thedesignation “New Jersey.” As noted above, Ms. Caratzola has also endorsed theviews of Pamela Geller, who is identified by the Southern Poverty Law Center inits index of Anti-Muslim Extremists as “the anti-Islam movement’s most visibleand flamboyant figurehead.”






80

As the hearings continued, an online poster who again identified herself as“LC”—and who now represented herself to be Ms. Caratzola—was also active onBareNakedIslam.com, a self-proclaimed “leading anti-Islam website[] inAmerica.” The website posted an article about ISBR’s mosque project copiedfrom a news source and interspersed with the website’s own commentary, whichincluded statements such as “Nobody wants to live near potential terrorists” and“[Ms. Caratzola] should be applauded for her efforts here.” The posting includeda picture of the ISBR Property below a flaming skull next to the slogan, “It isn’tIslamophobia when they ARE trying to kill you.” The website headlined theposting: “A mosque by any other name is still a potential terrorist indoctrinationcenter.” See Figure 3. “LC” told the website author in her comments on theISBR article that “I admire your work” and thanked him for his support.


81Ms. Caratzola cross-examined every witness for ISBR who testified at the Board’shearings.

Admitted.

82

Meanwhile, acts of physical hostility continued. On September 20, 2014, forexample, an unknown individual again vandalized the mailbox of ISBR’s Propertyat 124 Church Street. This time, the vandal placed on the mailbox three-inchstickers spelling the acronym “ISIS,” which refers to a violent internationalterrorist group. The vandal then apparently attempted to peel off parts of the“ISIS” lettering to integrate it with the preexisting lettering on the mailbox. SeeFigure 4. Dr. Chaudry again reported the incident to the Township police. Thepolice report specifically noted the vandal’s attempt to convert “ISBR” into“ISIS” on the mailbox. See Figure 5.

After reasonable investigation, the defendantsare without sufficient information to admit ordeny this allegation, except that the defendantsadmit that plaintiff Chaudry reported the incidentto the Township Police and the police reportnoted attempt to convert ISBR into ISIS on themailbox.

83

And hostility continued to be expressed inside the Board’s hearings. InSeptember 2014, after the use of a fence in ISBR’s site plans was addressed at aBoard hearing, a community member was heard stating (off the record) that shewould “rather look at a fence than a mosque.”






84

Similarly, in the summer of 2015, a community member explained to the Boardthat “[t]he appropriate strategy I would argue for anyone moving into acommunity is to assimilate into that local society without unduly impacting thecharacter of the community. Liberty Corner is a historic village and that is whywe chose to live here, we like it here, we like it the way it is. Assimilation meansthat one tries to minimize the impact on that community, live in it, enjoy it, but tryto minimize your changes to it. . . . I worry about future congregants and howthey will behave. . . . We have already seen some strange, aberrant behavior from[mosque] supporters . . . .”


85

On one occasion in August 2015, Dr. Chaudry was even the victim of physicalintimidation in a restroom during a break at a Board hearing. Dr. Chaudry’sassailant, a mosque opponent, claimed that Dr. Chaudry would put recordings hehad made of the Board’s public proceedings “up on radical Islamic websites.”This incident was also reported to the police.

After reasonable investigation, the defendantsare without sufficient information to admit ordeny this allegation, except that the defendantsadmit the incident was reported to the police.

86

The motives of certain individual objectors who did not live proximate to theProperty were further exposed that same month when a young Muslim familysought to purchase a home in the Basking Ridge area. Attending an open house inBasking Ridge, they were informed by a real estate agent that “Muslim people . . .are planning to build a mosque on Church Street in Liberty Corner area and thecase is in town for over 3 years for getting [sic] an approval.” The realtor, whoassumed that the family was not Muslim, stated candidly that she was opposingthe construction of the mosque because “Muslim people are terrorist [sic] andonce they build the mosque, it will not be good for the community.” The realtorexplained that “we can’t openly oppose the mosque construction, because it willbe considered Racist [sic].” According to the realtor, “the Muslim communityhired a high profile attorney to win their case and we are not happy at all. Wewish we could shoot their attorney.”


87

In December 2015, the Board denied ISBR’s application. Days later, a sign onISBR’s Property reading “Proud to Be an American,” which usually stands facingChurch Street, was turned around by unknown trespassers so that only its blankrear side was visible.

After reasonable investigation, the defendantsare without sufficient information to admit ordeny this allegation, except that the defendantsadmit in December of 2015, the Board deniedISBR’s application.




Para. Complaint AnswerE. An Organization Is Created to Oppose ISBR’s Application

88

The opposition to ISBR’s application to build a mosque in the Township reflected,on its face, religious and cultural animus against Muslims. This discriminatoryintent was adopted by the Board itself and ultimately incorporated into its denialof ISBR’s application. As the opposition grew more sophisticated, argumentsinside the Board became increasingly focused on supposed land use concerns.And objectors, over time, grew more organized and coordinated.

After reasonable investigation, the defendantsare without sufficient information to admit ordeny any characterization of the motivationbehind the opposition by the objectors to ISBR’sapplication to build the mosque. It is denied thatany alleged discriminatory intent was adopted bythe Board. After reasonable investigation,, thedefendants are without sufficient information toadmit or deny the allegation in this paragraphconcerning the sophistication or organization ofthe objectors.

89In February 2012, right after ISBR’s public work session with the Board, anorganization was formed for the express purpose of opposing ISBR’s application:the Bernards Township Citizens for Responsible Development (the “BTCRD”).


90

The BTCRD website claims that the organization seeks appropriate land usepolicies that “strive to maintain the character of the community, protect theintegrity of existing neighborhoods and prevent intrusion of incompatible newdevelopment.” Despite the organization’s name and purported goals, however, ithas never opposed any development other than ISBR’s proposal to build amosque. Indeed, the “our concerns” section of the BTCRD website discussesonly one issue: “We are concerned about the impact of [ISBR’s] developmentproposal to convert a current residential property to effectively commercial use bybuilding a nearly 4,500 square foot Mosque complete with a 107 space parking loton Church Street in Liberty Corner.” As noted above, “LC”, believed to be Ms.Caratzola, posted online encouraging people to visit the BTCRD website.


91

The BTCRD internet homepage prominently features a picture of a sign for theLiberty Corner Historic District. See Figure 6. As noted, however, ISBR’sProperty is not located in the Liberty Corner Historic District.

After reasonable investigation,, the defendantsare without sufficient information to admit ordeny the characterization of the BTCRDhomepage. The defendants admit that ISBR’sproperty is not located in the Liberty CornerHistoric District.

92The sources of the BTCRD’s funding are not public. Online poster “LC,”however, has posted online about having donated money to the BTCRD.






93

The BTCRD initiated its mission against ISBR by soliciting communityopposition to ISBR’s application. For instance, beginning in August 2012,individuals believed to be affiliated with the BTCRD began distributing signsstating “Preserve Liberty Corner” throughout the Township. See Figure 7. Thosesigns were prominently displayed in front yards across the Township.


94In or around August 2012, a picture of a “Preserve Liberty Corner” sign was alsoposted on the BTCRD website. That picture, however, was subsequentlyremoved.


95

The “Preserve Liberty Corner” signs remained a fixture in the Township for yearsand were the subject of media coverage. In April 2013, for example, a local newschannel interviewed a resident of Church Street who “proudly” displayed her“Preserve Liberty Corner” signs. The resident stated that she opposed the mosque“to preserve the look and the attitude . . . of the town.” The reporters noted that,while none of the residents who opposed the mosque at Board hearings would sayso on camera, they “indicated that in light of extremist actions since 9/11, some ofthem wouldn’t feel comfortable with a mosque in their town.”


96

The Preserve Liberty Corner terminology was also the subject of onlinecommentary. One commentator on Patch, unaffiliated with ISBR, engaged indebate with mosque opponents and stated: “Preserve Liberty Corner?! That’squite a large Fire Dept. you’ve got there within 1/4 mile of the elementary school,expansive Presbyterian Church complex, post office, beauty salon, bakery, drycleaners, tennis court, major restaurant, convenience store, 2 gas stations, autobody shop, many office/busineses [sic] . . . Liberty Corner is a nice place but whatare you preserving exactly besides the traditional bigotry of this republican area?”


97

In or around September 2012, after the BTCRD had appeared in Boardproceedings opposing the mosque, flyers were distributed at the Liberty CornerPost Office depicting a stop sign and the phrase “Is Liberty Corner the RightLocation for a Mosque?” The flyer urged community members to attend Boardhearings to oppose ISBR’s proposed mosque. The first issue the flyer addressedwas “the [mosque’s] impact on public safety.” See Figure 8.






98

Some BTCRD-related hostile activities were visible even from ISBR’s ownProperty. In July 2014, for example, a sign reading “No Mosque Here” and “5Times A Day Every Day” and depicting a bolt of lightning appeared in the yard ofthe ISBR’s western neighbor. The sign was visible from a busy intersection andbore the website for the BTCRD. The sign also stated in darker text “100 Cars”and “Not a Proper Use.” See Figure 9.


99

At one Board hearing, the husband of one of the BTCRD’s founding trustees evenquestioned ISBR’s affiliations with other entities and sources of funding—issuesof no relevance to the Board proceedings. Dr. Chaudry dispelled the notion thatISBR was affiliated with or funded by any suspicious organizations, testifying thatISBR has no such affiliations and raises funds from the local community.


100

The BTCRD was the lead objector at Board meetings and hired private counsel torepresent the opposition in those hearings. Because ISBR’s application fullyconformed to the Township’s zoning ordinance, the Board had no discretion todeny it. The BTCRD, however, consistently argued that the Board, nonetheless,had discretion to deny ISBR’s application. And it sought to mobilize oppositionattendance to pressure the Board through private meetings with other communitygroups.

The defendants deny that there was a “leadobjector at the Board meetings” but admit thatthe BTCRD hired private counsel, RobertSimon, Esq., to represent the BTCRD in thosehearings. The defendants deny the allegation thatthe Board had no discretion to deny theapplication. After reasonable investigation,, thedefendants are without sufficient information toadmit or deny the other allegations in thisparagraph.

101

At one community meeting on September 7, 2014, the BTCRD appears to havecoached members of the “Hills Fun Group” on how to make complaints at Boardhearings that were facially non-discriminatory. Even while addressing Islamicprayer timing and noting that the mosque “won’t serve the community at large,”community members were cautioned to limit their public statements to land useissues because it would damage the opposition effort if alternative motives wererevealed. Minutes from that September 7 meeting state, “Please Remember DoNot Make Any Comments on the Religion or Islamic Mosque Itself!! If we do so,we will loose [sic] the battle.” See Figure 10.






102

At about the same time, in the fall of 2014, a blogger affiliated with the Hills FunGroup posted on the internet about “a potential winning strategy” for defeating themosque by engaging with the local fire chief. The blogger went on to summarizethe opposition’s strategy: “Our goal is to force the township planning board to puta stay on the decision, order new studies, and drag the issue into Neverland.Without a decision, our opponent can not [sic] file suit, as the delay is wellwarranted over public safety issue. Thus we take their best weapon off table.Will our opponent be able to survive the wait? Will there be greener grasselsewhere . . . “


103

Toward the end of the Board’s process, a letter to the Editor of The BernardsvilleNews from an individual unaffiliated with ISBR and published on December 6,2015, summarized the situation as follows: “[t]hough the BTCRD pretend[s] theiropposition is only related to parking and traffic concerns, it’s clear that this isrooted in xenophobia; an attempt to keep Muslims out of the neighborhood.” Theauthor asked the newspapers readers to “see through [the BTCRD’s] sneakylanguage and read between the lines. Ask yourselves whether the BTCRD wouldmake the same arguments against the day care center, yoga studio or PresbyterianChurch in that section of town, had they been the applicants in question.”


F. Board Views Regarding Islam and ISBR’s Mosque

104

At least some members of the Board also expressed themselves online. Forexample, John Malay—who served as Mayor of the Township throughout 2015,has served on the Township Committee since 2004, and began serving on theBoard in January 2014—referenced presidential candidate Ben Carson’s statedqualifications for a Muslim to serve in high office in a post on social mediaplatform Twitter: “#TenLittleIndians Ben Carson: ‘I’d accept a Muslim Presidentif he rejected Islam, owned a dog, drank beer, let his wife boss him around.’”

Denied because the quote is taken out of contextand is incomplete.

105

Mr. Malay also used his Twitter feed to comment on a photo depicting a humanfigure in an explosion. See Figure 11. An article accompanying the picturereferred to Islam as “The Religion of Pieces,” a pun on the characterization ofIslam as the “religion of peace.” Mr. Malay suggested an alternate name for thepicture, “The Headless Imam,” an apparent reference to suicide bombings inwhich the perpetrator’s head is severed. Shortly after the issuance of thePlanning’s Board’s final decision in this case, Mr. Malay removed this post fromhis Twitter social media account, where it had been posted for more than a year.

Denied because the quote is taken out of contextand is incomplete.





106Other Board members expressed their views regarding the proposed ISBR mosquespecifically. Years before a final decision, Board member Kevin Orr privatelytold a friend that ISBR’s mosque would “never get built.”

Denied.

107

Board member Carolyn Gaziano ran for re-election to the Township Committee inthe fall of 2012, just as the Board’s hearings on ISBR’s application began. Duringthat 2012 campaign, Ms. Gaziano participated in a “Candidates Night”community meeting with her Democratic opponent, David Ferdinand. Mr.Ferdinand noted that local citizens’ concerns about ISBR’s proposed mosque were“more complicated” than just land use issues, and that “there is an undercurrent ofworry, even anger for some people” as to ISBR’s proposal. But Mr. Ferdinandconcluded that ISBR’s proposed mosque should be a “fait accompli” because itwas a “permitted use” in the residential zone. In response, Ms. Gaziano statedthat approval of the application was not a fait accompli and pledged that “we willlook at every aspect of it.”

Denied. Ms. Gaziano is not quoted accuratelyand the quote is not presented in its entirety.

G. Defendants Change the Rules to Ensure ISBR Can Never Build a Mosque on Its Property

108

While ISBR’s site plan application was pending before the Board, the TownshipCommittee took action to ensure that, upon denial of its pending application,ISBR could never again apply for a mosque on its Property. Specifically, theTownship Committee amended the zoning ordinance so that a house of worshipwould be a “conditionally permitted use” only in certain zones throughout theTownship. The Ordinance also imposed numerous additional hard or impossible-to-meet new conditions for houses of worship.

It is denied that ISBR could never again applyfor a mosque on its property. It is denied that theamending zoning ordinance imposed numerousadditional harder and impossible to newconditions for houses of worship.

109

Changing zoning ordinances to preclude the development of a mosque was not anew strategy. In March 2011, the nearby Township of Bridgewater implementeda similar strategy to prevent an organization called the Al Falah Center frombuilding a mosque there. Specifically, Bridgewater Township enacted anordinance imposing limitations that included requiring that all houses of worship,which were permitted uses in Bridgewater’s residential zones, front on a narrowlydrawn set of specified public roads. The Al Falah Center, due to the location ofits property, could not meet that requirement, which led to years of protracted andcostly litigation between Bridgewater and the Al Falah Center.

Denied.

110The seed of how a similar strategy could help exclude ISBR from BernardsTownship was planted by Ms. Caratzola with the Township Committee in October2012, within weeks after the first public hearing on ISBR’s application.

Denied





111

Ms. Caratzola brought her concerns about ISBR’s proposed mosque to theTownship Committee, proposing an amendment to the Township’s zoningordinance that would make it more difficult to build a house of worship in aresidential zone. In her presentation to the Committee, Ms. Caratzola made clearthat her concerns stemmed from her attendance at the Board’s hearings on ISBR’sapplication. She also noted to the Committee that her own research showed thatthe Township’s approach was out of step with revised ordinances in neighboringcommunities.

It is admitted that Ms. Caratzola’s proposed anamendment to the zoning ordinance. The otherallegations in this paragraph are denied.

112

Not long thereafter, in January 2013, the Township Committee enlisted theTownship Planner, David Banisch, to conduct a study to identify possible zoningamendments as they might relate to permitted institutional uses, like houses ofworship, in the Township’s residential zones.

Admitted.

113

On September 10, 2013, Township Committee members including Mr. Malayformally introduced an amendment to the Township’s zoning ordinance. Thepreamble to the proposed amendment explained that its purpose was to “maintainand enhance community character, protect the integrity of existing neighborhoodsand prevent the intrusion of incompatible new development with existingresidential development.” Notwithstanding this purported explanation, during aBoard hearing on ISBR’s application the following year, when a communitymember asked the BTCRD’s planning expert why the ordinance was changed, theBoard’s attorney cut off questioning about the amendment’s purpose, stating thatthe “question is irrelevant [and] it could lead to nothing but something badhappening.”

The Explanatory Statement (not a Preamble) isonly quoted here in part. It is denied that anyonewas denied an opportunity to speak.

114

The proposed amendment, Ordinance # 2242, created onerous conditions forhouses of worship and schools. Among other things, it doubled the requiredminimum lot size from three acres to six acres and significantly increased thestandards for lot coverage, floor area ratio, and building and parking setbacks.The amendment also required that any house of worship have primary access froma state or county road and imposed time limits on outdoor activities and lighting.

It is denied that the ordinance created onerousconditions. The other allegations in thisparagraph are admitted.

115

Over time there have been very few, if any, available plots in the Township thatwould satisfy the amended zoning ordinance’s criteria. ISBR’s 4.08-acre plotcannot satisfy the six-acre requirement under Ordinance # 2242.

After reasonable investigation, the defendantsare without sufficient information to admit ordeny this allegation. To respond would require astudy of available plots, which the defendantshave not conducted.





116On October 15, 2013, the Committee formally adopted Ordinance # 2242 by avote of 4 to 1.

Admitted.

117

The Township Committee passed Ordinance # 2242 for the purpose of preventingPlaintiffs from building a mosque in the Township. Moreover, Ordinance # 2242,on its face, is neither neutral nor generally applicable because it creates specialzoning rules that directly target houses of religious worship.

Denied.

118

Ordinance # 2242 drew criticism from local religious leaders due to both thezoning restrictions on houses of worship and the limitations on the logistics ofreligious exercise, such as timing of service. One member of the local clergy toldthe Committee during a meeting in late 2013 that the measure marked “the firsttime [he had] ever seen operating restrictions imposed on houses of worship bythe Township Committee.” The clergyman further stated that these “operationalrestrictions, if put into place, would be subjecting local government’s belief onwhat should be the way that churches are able to tend to their flock.” He alsovoiced concern about the requirement that a new house of worship would need sixacres, as opposed to the prior minimum of three acres, and that the house ofworship would need access to a county or state road. He stated that few local,undeveloped tracts met those criteria.

Unknown.

119

The Township Committee assured local residents that existing houses of worshipwould be “grandfathered in” and would not be subject to the new statutoryscheme. That is, only new religious groups and new houses of worship would besubjected to the more stringent standards.

Denied.

120

The true purpose of the new ordinance was no secret. At that same 2013 meeting,for example, a community member stated that the ordinance was being proposed“as a reaction to the Muslim community.” Another concerned citizen observedthat the new ordinance was “an apartheid creating two classes.” David Ferdinand,a former candidate for the Township Committee, attributed the Township’samendment to “the whole bugaboo about Islam.”

Denied.

121

The new ordinance did not apply to ISBR’s pending proposal due to New Jersey’sTime of Application law, which had been changed in 2011 to provide thatapplications could be adjudicated based only on the law existing at the time theapplication was initiated. But the new ordinance ensured that if the Board deniedISBR’s application, it could not reapply with a compliant, revised site plan.

It is admitted that the new ordinance did notapply to ISBR’s pending proposal. It is deniedthat the new ordinance ensured that if the Boarddenied ISBR’s application it could not reapplywith a compliant revised sit plan.




Para. Complaint AnswerH. The Board Denies ISBR’s Application

122

The lengthy Board process placed an immense financial strain on Plaintiffs. Atthe Board’s request—and at great expense—ISBR’s professionals developed fivefully-developed sets of plans with engineering, architectural, stormwatermanagement, and landscaping details, and several interim and subsequent revisedindividual plan pages. Throughout, ISBR had to pay not just the fees of its ownprofessionals, but also for the five experts advising the Board: a Board Attorney, aBoard Engineer, a Board Planner, a Township Planner, and the Fire Official.

After reasonable investigation,, the defendantsare without sufficient information to admit ordeny the allegation that the Board process placedan immense financial strain on the plaintiffs. Thedefendants admit that at the Board’s request,ISBR’s professionals developed five sets ofplans. After reasonable investigation,, thedefendants are without sufficient information toadmit or deny the allegation concerning theexpense of developing these plans. Thedefendants deny that the plans were “fullydeveloped.”

123

The Board formally denied ISBR’s application in a 40-page resolution datedJanuary 19, 2016 (the “Resolution”), which was formally published on January28, 2016. The Board’s denial of ISBR’s application purported to be driven byseveral land use issues, but in reality, ISBR’s application was denied becauseDefendants capitulated to and adopted the anti-Muslim animus of theircommunity constituency.

It is admitted that the Board formally deniedISBR’s application in a forty page Resolutiondated January 19,2016 and published on January28, 2016. The second sentence in this paragraphregarding why the application was denied isdenied by the defendants.

124

To reach its conclusions, the Board misapplied the Township ordinance withrespect to, among other things, parking, buffering, fencing, site lighting, and firesafety requirements. The Board also rejected the views of its own professionalexperts and counsel. Moreover, the Board rejected ISBR’s application outrightinstead of granting preliminary approval with conditions for obtaining finalapproval. The Board’s analysis on all key issues is fundamentally flawed,inconsistent with the factual record, and does not withstand scrutiny.

Denied.

125

Township Ord. § 21-22.1 (the “Parking Ordinance”) sets forth the “acceptable”number of parking spaces for a house of worship. Specifically, it provides that“Churches, auditoriums, [and] theaters” shall provide “1 space for every 3 seats or1 space for every 24 linear inches of pew space.”

Admitted, though “House of worship” is notused in §22-22.1.





126

Under the operative definitions clause, words in the Parking Ordinance that arenot expressly defined have the definitions set forth in Webster’s Third NewInternational Dictionary of the English Language (unabridged version)(“Dictionary”). The word “church” is not expressly defined in the Townshipordinance and therefore the Dictionary definition applies. The Dictionary definesa “church” as “a place of worship of any religion (a Muslim ~).” Accordingly,“churches” include houses of worship for all religions, including mosques.

Admitted.

127

The Board has applied the 3:1 parking ratio for “churches” (or a more favorableapplication of the Township’s parking requirement) to every house of worship thathas applied for site plan approval while the Parking Ordinance has been in effect,including two local synagogues. The Board has never engaged in anindividualized determination of additional parking need for any other applicant.

It is admitted that the 3:1 parking ratio wasapplied to houses of worship which applied forsite plan approval before the Islamic Center ofBasking Ridge. This is because the revised ITEstandard did not exist at the time.

128

ISBR’s original architectural plan estimated the maximum occupancy of themosque’s prayer hall at 150 people. Pursuant to Ord. § 21-22.1, ISBR proposedone parking space for every three seats, i.e., 50 parking spaces.

The defendants admit ISBR’soriginalarchitectural plan estimated the mosque’s prayerhall at 150 people. The defendants admit that theISBR proposal was one parking space for everythree prayer mats. The defendants deny that theplaintiffs properly interpreted Ord. §21-22.1

129

In a letter to the Board dated August 7, 2012, Board Planner David Banischagreed that this proposal satisfied the ordinance, stating, “50 parking spaces areproposed vs. 50 spaces required.” Board Planner Banisch did not recommend anyincrease in the number of parking spaces pursuant to the Township’s ParkingOrdinance.

It is denied that David Banisch agreed that theproposal satisfied the ordinance. It is admittedthat Mr. Banisch did not recommend anyincrease in the number of parking spaces in hisletter of August 7, 2012, though he did makesuch a recommendation at a later date.

130

In a separate letter dated August 3, 2012, Township Planner David Schleylikewise noted that ISBR’s proposal included 50 parking spaces. As theTownship Planner, his review letter for a development proposal is designed toinform the Board of any and all required variances and exceptions an applicantneeds from the applicable land use ordinances. His initial letter on ISBR’sapplication cited no variance for the number of parking spaces provided.

The defendants admit that in a letter datedAugust 3, 2012, David Schley noted the ISBRproposal included 50 parking spaces.





131

On August 7, 2012, the Board’s public hearings on ISBR’s application began. Atthe Board’s hearings on August 7, 2012 and September 4, 2012, Board membersand community objectors challenged ISBR’s representations about the expectedoccupancy of the mosque. They questioned Dr. Chaudry for hours about the sizeof ISBR’s congregation and its prospects for future growth. For example, anobjector asked Dr. Chaudry, “I don’t know that much about your religion but doyou encourage couples to have a number of children?” She then questionedISBR’s growth estimates.

All allegations in this paragraph admitted exceptthe defendants deny the length of time of thequestioning

132

Dr. Chaudry testified that ISBR had 55 members and an average of 65 attendees atits Friday afternoon service, which is its only weekly congregational service. Dr.Chaudry further testified that, using the highest known growth rates, he expected amaximum of 150 attendees at Jumma services within five to 10 years.

Admitted.

133

In response, Board member Richard Huckins stated, “I’ve read somewhere thatthere’s like an estimate of . . . 50 to 100,000 Muslims in the State of New Jersey. .. . I find it hard to believe that you would see such a small number to just go from55 to 150.”

Admitted.

134Board member Kevin Orr, in contravention of applicable rules, introduced a reportthat found an average of 353 attendees at Jumma services nationwide, which hesuggested had some bearing on ISBR’s attendance.

Denied.

135Dr. Chaudry repeatedly testified that ISBR would comply with the occupancylimits set by the Township’s fire code and fire officials

Admitted.

136

After the Board and community objectors questioned ISBR’s representationsabout its expected attendance, Board Planner Banisch issued a new parking memoon October 25, 2012. In that memo, Mr. Banisch performed his own calculationof the number of worshippers that could theoretically fit into ISBR’s prayer hallbased upon his estimate of the size of a Muslim prayer rug. Mr. Banisch’scalculations yielded a maximum occupancy of 168 prayer rugs. He then dividedthat number by three—in accordance with the Parking Ordinance’s 3:1 ratio—andconcluded that 56 parking spaces were required, only slightly higher than the 50spaces he had previously agreed were sufficient.

It is admitted that Mr. Banisch issued a newparking memo on October 25, 2012. All otherallegations in this paragraph are admitted, exceptthat the defendants deny that Mr. Banisch everconceded that 50 or 56 parking spaces weresufficient.





137

The Board and objectors were still not satisfied. At an October 25, 2012 hearing,the BTCRD’s counsel questioned ISBR’s traffic engineer, Henry Ney, about anInstitute of Transportation Engineers (“ITE”) report titled Parking Generation.The ITE report used a different measure of parking spaces per square footage,which for mosques was recorded as 25.79 parking spaces per 1,000 feet of grossfloor area. This ITE rate was developed based on three days of data collectedfrom three mosques located in Arizona and Canada.

After reasonable investigation,, the defendantsare without sufficient information to admit ordeny any allegations concerning whether theobjectors were satisfied.

138

ISBR Traffic Engineer Ney described the parking ratio recorded in this ITE reportas “not a recommended standard.” The ITE’s Parking Generation report itselfacknowledges that its parking data are not authoritative. The report states:It should be understood that the data contained in this report are collected byvolunteers and are not the result of a financed research effort. The ranges ofinformation and statistics are provided only as an informational guide to plannersand designers regarding parking demand. This informational report does notprovide authoritative findings, recommendations, or standards on parking demand.

The allegations in this paragraph are admitted,except that After reasonable investigation,, thedefendants are without sufficient information toadmit or deny the allegation that ISBR TrafficEngineer Ney described the parking rationrecorded in the ITE report as “not arecommended standard.”

139

Since ITE released its Parking Generation publication in 1985, the Board hasnever applied the ITE parking rates to determine the parking requirement for anyother house of worship. Following that testimony, however, Board AttorneyJonathan Drill directed Mr. Ney to research the parking ratio for mosquescontained in ITE’s Parking Generation.

It is admitted that the Board never applied theITE parking rates to determine the parkingrequirement for any other house of worship, butthe issue was not raised in any of the other houseof worship applications, and in the ITE parkingrates at issue were not published in the ITEParking Generation Manual until 2010, whichwas subsequent to the applications relating to theother houses of worship.. In regard to the secondsentence in this paragraph, the defendants admitthe allegation except that Board AttorneyJonathan Drill suggested to all Traffic Engineersthat they research the parking ratio for mosquescontained in the ITE’s Parking GenerationManual.





140

In December 2012, ISBR and the BTCRD objectors submitted letter briefs toBoard Attorney Drill concerning the applicable parking standard. In a letter datedDecember 14, 2012, ISBR took the position that the Township ordinance’s 3:1parking ratio for churches applied to ISBR’s plans. At the Board’s request,however, ISBR also provided parking ratios for houses of worship set forth in fivedifferent industry publications, including ITE’s Parking Generation. ISBR thenapplied these parking ratios to the specifications of its plans. The resultingparking recommendations ranged from 36 spaces to 110 spaces. The ratio fromITE’s Parking Generation yielded a recommendation of 110 spaces—the highestparking requirement listed in the letter.

The defendants admit the allegation that inDecember of 2012, ISBR and the BTCRDobjectors submitted letter briefs to BoardAttorney Drill concerning the applicable parkingstandard. The defendants admit that in a letterdated December 14, 2012, ISBR took theposition that the 3.1 parking ratio for churchesapplied to ISBR’s plans. Defendants deny thatthe Township ordinance establishes 3:1 as theparking standard for all houses of worship.Defendants admit all other allegations in thisparagraph.

141

In a letter dated December 21, 2012, the BTCRD objectors argued that theTownship ordinance’s 3:1 parking ratio for churches did not apply to ISBR’splans because a mosque is not a church. The BTCRD argued that the ratiorecorded in ITE’s Parking Generation was the appropriate standard and, therefore,110 spaces were required. In effect, the objectors asked the Board to re-write theParking Ordinance to ignore the Dictionary’s definition of “church,” whichincludes mosques; and the Board did just that.

The defendants admit the allegation concerningthe December 21, 2012 letter. The defendantsadmit the allegation concerning the argument ofBTCRD. The defendants deny the allegation thatthe objectors asked the Board to rewrite theParking Ordinance and that the Board did justthat.

142

On January 3, 2013, Board Attorney Drill and Board Planner Banisch issued anew joint parking memo. The Drill/Banisch parking memo advanced two legalpositions:1) that the Parking Ordinance required the Board to engage in an individualizedanalysis of every applicant’s parking need, regardless of the ratios set forth in theordinance; and2) that the Parking Ordinance’s 3:1 ratio for “churches” applied only to Christianchurches.

It is admitted that on January 3, 2013, Mr. Drilland Mr. Banisch issued a new joint parkingmemo.

143

Under Drill and Banisch’s interpretation of the Township’s ordinance, the 3:1parking ratio is a standard only for churches, and not for any other houses ofworship, such as mosques or synagogues. Accordingly, Muslim and Jewishapplicants are wholly subject to the Board’s discretion concerning parkingrequirements, but Christian applicants are not. The Board has never taken thislegal position with respect to any other applicant, including two synagogues.

The allegation concerning Drill’s and Banisch’sinterpretation of the parking ordinance is denied.The other allegations in this paragraph aredenied.





144

The Board cited certain language in the Township’s Parking Ordinance asauthority for the purported requirement that the Board engage in an individualizedanalysis of ISBR’s parking need, regardless of the ratios set forth therein. Thatsection of the ordinance provides:Since a specific use may generate a parkingdemand different from those enumerated below, documentation and testimonyshall be presented to the Board as to the anticipated parking demand. Based uponsuch documentation and testimony, the Board may . . . [i]n the case ofnonresidential uses, require that provision be made for the construction of spacesin excess of those required hereinbelow, to ensure that the parking demand will beaccommodated by off-street spaces.

Admitted.

145

The Drill/Banisch memo then looked outside of the Parking Ordinance forguidance on the appropriate parking ratio for ISBR’s proposed use. The memoultimately incorporated the ITE’s Parking Generation rate for mosques. Based onthis rate, the Drill/Banisch memo calculated a requirement of 110 parking spaces.However, the Drill/Banisch memo also stated that ISBR had the option ofpresenting an alternative recommendation based on a local parking study.

Admitted, except that the 110 parking spacerequirement will not be applied if an applicantpresents evidence as to why it should not apply.

146

In response to the Drill/Banisch memo, ISBR Traffic Engineer Ney performed adetailed study of local mosques in New Jersey with characteristics similar to thoseof ISBR, as opposed to the ITE’s randomly chosen mosques in Canada andArizona. At the Board’s request, Mr. Ney collected additional data and producedadditional charts. He collected data from four different mosques on six differentoccasions and calculated the number of parking spaces based on the ITEmethodology. From January 2013 to June 2013, ISBR presented the supplementalparking studies and extensive testimony from Mr. Ney about his analyses. Basedon his local parking study, Mr. Ney stated that applying the ITE methodologyresulted in 60 parking spaces for ISBR.

After reasonable investigation,, the defendantsare without sufficient information to admit ordeny the allegation that ISBR Traffic EngineerNey performed a detailed study. It is admittedthat at the Board’s request, Mr. Ney collectedadditional data. After reasonable investigation,,the defendants are without sufficient informationthat the data collected by Mr. Ney and hiscalculations were based on the ITEmethodology. It is admitted that from January2013 to June 2013, ISBR presented thesupplemental parking studies and extensivetestimony from Mr. Ney about his analysis. Thedefendants deny the allegation that based on hislocal parking study, Mr. Ney stated that applyingthe ITE methodology resulted in 60 parkingspaces for ISBR (his report said 70).

147The Board’s own engineer, Thomas Quinn, agreed that the parking metric used byMr. Ney was the most appropriate methodology to measure parking demand.

Denied.





148

Again, however, the Board and objectors were not satisfied. The Boardquestioned Mr. Ney—again—about his parking recommendation with a series ofhypotheticals that resulted in artificially inflated parking estimates. For example,the Drill/Banisch parking memo recognized that traffic engineers use parking datarepresenting the 85th percentile of parking demand, and that the use of 100thpercentile figures “would result in production of an unnecessary number ofparking spaces.” Nevertheless, the Board persisted in questioning Mr. Ney about100th percentile figures.

After reasonable investigation,, the defendantsare without sufficient information to admit ordeny whether the objectors were “satisfied.” Thedefendants deny the allegation that the Boardwas “not satisfied”, as the Board was simplyperforming its statutory function. The defendantsdeny the allegation that any of its activitiesresulted in “inflated” parking estimates. Thedefendants admit that the Drill/Banisch parkingmemo recognized traffic engineers use parkingdata representing the 85th percentile of parkingdemand and that the use of 100th percentilefigures would result in production of anunnecessary number of parking spaces. It isadmitted that the Board questioned Mr. Nayabout the 100th percentile figures.

149

On June 4, 2013, the day the Board voted on ISBR’s parking requirement and alsothe last day of testimony on this issue, the BTCRD objectors presented testimonyfrom their own traffic engineer, Alexander Litwornia. With all priormethodologies having failed to yield a defensible parking requirementsubstantially different from the 3:1 ratio in the ordinance, Mr. Litwornia presenteda parking recommendation based on an entirely different metric—the number ofattendees per car. Based on a single day of data collected from two othermosques, Mr. Litwornia speculated that each car traveling to ISBR’s prayerservices would hold 1.4 attendees and, therefore, ISBR should be required toprovide 107 parking spaces.

It is admitted that on June 4, 2013, the Boardvoted on ISBR’s parking requirement and thatthe BTCRD objectors presented testimony fromtheir own traffic engineer. It is admitted that Mr.Litwrnia presented a parking recommendationbased upon a different metric. Thecharacterization of the testimony is denied. Afterreasonable investigation,, the defendants arewithout sufficient information to admit or denythe allegation as to the basis of Mr. Litwrnia’sstudies. It is admitted that Mr. Litwrniarecommended that ISBR should be required toprovide 107 parking spaces.





150

Within hours of hearing Mr. Litwornia’s parking recommendation for the firsttime, the Board adopted his position in full and required ISBR to provide 107parking spaces. The Board arbitrarily and unreasonably disregarded the 3:1parking ratio in the Township ordinance and the original recommendations ofBoard Planner Banisch approving the application of that ratio. The Board furtherdisregarded Mr. Banisch’s subsequent recommendation based on his prayer rugcalculations and the testimony of ISBR Traffic Engineer Ney, who performedcomprehensive local parking studies at the Board’s request based on the ITEmethodologies it had earlier deemed appropriate.

It is admitted that the Board adopted arecommendation of 107 parking spaces, butdenied that it adopted in full the positionadvanced by Mr. Litwrnia. All of the allegationsin this paragraph are denied.

151

The Board’s parking determination also ignored extensive ISBR testimony aboutthe various ways in which it could reduce its parking needs in the event that itsFriday Jumma attendance grew in the future. Dr. Chaudry testified, for example,that ISBR was willing to split its Jumma prayer service, which is ISBR’s largestweekly prayer service, into two separate services, in the same way that localchurches do on Sundays. This would reduce the parking demand by roughly onehalf at each service and alleviate any speculative strain on parking. Further, ISBRTraffic Engineer Ney testified that ISBR could decrease its parking demandthrough ride-sharing arrangements (including the use of a nearby park-and-ridelot), valet parking, or by using the Harry Dunham Park lot for overflow, againsimilar to methods used by local churches. The Board ignored each of thoseoptions in favor of the most burdensome parking requirement it felt it couldjustify.

It is denied that the Board ignored ISBRtestimony. It is admitted that Mr. Ney testifiedthat ISBR could decrease its parking demandthrough ride sharing arrangements, etc. It isdenied that the Board ignored Mr. Ney’srecommendations.

152

Because the Board formally voted on ISBR’s parking requirement on June 4,2013, this determination was binding during the remainder of the applicationreview process. Accordingly, ISBR had to reconfigure its site plans to complywith the 107-space requirement. Though not an explicit basis for denying ISBR’sapplication, the Board’s requirement of 107 parking spaces laid the groundworkfor each of the Board’s bases for denying ISBR preliminary and final site planapproval.

It is denied that the Board’s vote was bindingthroughout the remainder of the applicationprocess. It is denied this compelled ISBR toreconfigure its site plans to comply with the 107space requirement. It is denied that the Board’srequirement of 107 parking spaces laid theground work for each of the Board’s bases fordenying ISBR preliminary and final site planapproval.





153

The Board’s decision to demand 107 parking spaces rather than follow the ratioset forth in the ordinance was not required by any compelling government interestand the Board did not set a parking requirement using the least restrictive meansavailable to it. The Board treated ISBR differently and less favorably than otherreligious and secular applicants and its determinations were arbitrary, capricious,and unreasonable.

The allegations in this paragraph are denied.

154

In denying ISBR’s site plan application, the Board noted that the plan included adrainage feature called a detention basin in a “buffer” along the Property’s easternboundary. Buffers are 50-foot-wide swaths of land that insulate non-residentialuses from neighboring residences. The Board found that “allowing . . . a largedrainage improvement wholly within the buffer represents the exceptionswallowing the rule and defeats the very purpose of the buffer.” While the Boardhad the authority to approve the placement of the basin, it did not do so because itdetermined that the basin’s location impacted ISBR’s ability to screen—i.e., tovisibly shield—the Property’s parking lot from the property of the easternneighbor. According to the Resolution, planted screening is more “aestheticallydesirable” than a fence; ISBR’s planted screening was inadequate, necessitating afence; and the reason the planted screening was inadequate was because of theplacement of the detention basin. The Board concluded that “[ISBR’s easternneighbors] deserve more from a new use than inadequate screening or adequatescreening but by an aesthetically displeasing fence.” Every step in the Board’slogic is untenable and contrary to law.

The allegations in this paragraph are admitted,except the defendants deny the allegation that“every step in the Board’s logic is untenable andcontrary to law.”





155

ISBR worked for months, hand in hand with the Board’s professionals, to resolvethe Board’s drainage concerns. Among other things, ISBR changed the types ofdrainage basins used, and agreed to change the locations, shapes, and depth of thebasin in the eastern buffer and a second basin on the Property’s north side. Eachof these modifications was reflected on ISBR’s site plans for the Board’s reviewand each entailed considerable expense. The Board’s parking determination thenrequired ISBR to make numerous additional changes. The additional parkingspaces required by the Board meant an increase in the waterproof pavement or“impervious surface” on the lot, which impacted the necessary amount of drainageinfrastructure. Due to the oversized parking lot requirement, there was only oneplace consistent with the opinions of the Board’s experts that the necessaryeastern detention basin could go: the eastern buffer.

It is admitted that ISBR worked for monthstoresolve the Board’s drainage concerns. It isadmitted that ISBR changed the type of drainagebasins and agreed to change the locations, etc.After reasonable investigation,, the defendantsare without sufficient information to admit ordeny the allegation that each of thesemodifications was reflected on ISBR’s site planswith the Boards review and entailed considerableexpense. The defendants admit the allegationthat the parking spaces required by the Boardmeant an increase in the water proof pavement,etc. It is denied that the parking lot requirementcan be considered “oversized”.

156

At least one Board member, Randy Santoro, explicitly acknowledged that theBoard had itself forced ISBR to place the detention basin in the eastern buffer. Ashe stated on the record at a later hearing: “[B]y making the vote on the parkingspaces, we sort of forced this configuration. So . . . I think we put the applicant inthis situation [by] requiring more parking places.”

The defendants admit the remark attributed toMr. Santoro.

157

Nonetheless, ISBR did not anticipate a problem with placing this detention basinin the eastern buffer. Detention basins are simply depressions in the ground withgrass bottoms that can be landscaped, and they appear in buffer zones at variousproperties in the Township.

After reasonable investigation,, the defendantsare without sufficient information to admit ordeny the allegation concerning whether ISBRanticipated a problem. The allegation describingthe detention basins is denied. To the extent thatthe plaintiff’s mean to imply that the existence ofdetention basins and buffer zones at otherlocations is relevant to the approval of the planssubmitted by the plaintiff, the allegation isdenied.





158

Indeed, drainage improvements like detention basins are listed in the Township’sbuffer ordinance, Ord. § 21-28.2, as being among the four types of “construction”permitted in a buffer with the Board’s approval. Detention basins are among theleast intensive of the improvements permitted in buffer zones—the others areunderground utilities, pedestrian and bicycle paths, and crossings of access roads.The size, shape, and configuration of ISBR’s detention basins were the result ofextensive discussions with the various Board professionals and were the subject ofextensive discussions between them and ISBR’s engineer, Adnan Khan.

It is admitted that drainage improvements arelisted in the Township’s zoning ordinance.Defendants deny the allegation that detentionbasins are among the least intensive ofimprovements. The other allegations in thisparagraph are denied.

159

By January 2014, Board Engineer Quinn was satisfied with the drainage plan. Atthe January 15, 2014 meeting of the Board, Board Attorney Drill confirmed thatthere were no further comments from the Board’s experts or the Board members,and that the stormwater management report—including the plan for the locationsand size of the detention basins—was ready for approval with minor conditions.


160

The objectors, however, were not satisfied. In May and June of 2014, the BTCRDobjectors presented their own expert, who contended that a basin would be“antithetical” to a buffer and that the lot was “functionally” too small for ISBR’sproposed use. Pressed to justify his opinion, however, that expert could notarticulate any legal or objective basis for his testimony. Indeed, he admitted thatthe standards he purported to apply were “invented.”

After reasonable investigation,, the defendantsare without sufficient information to admit ordeny the allegation that objectors were notsatisfied. The allegation concerning the BTCRDpresenting their own expert are admitted. Theallegation concerning the BTCRD expertarticulating a legal or objective basis for histestimony is denied. The Board found thetestimony of the expert to be a net opinion.

161

The Board then enlisted Board Planner Banisch to reinterpret the Townshipordinance’s buffer provision, Ord. § 21-28.2, an ordinance that is clear on its face.Citing no legal precedent, planning treatise, or any other authority, Mr. Banischinterpreted the ordinance’s requirement in a July 20, 2014 memo. He held that theTownship’s ordinance allowed only “limited incursions” in buffers, and only“when a unique physical circumstance of a site may require it.” Thisinterpretation of the buffer ordinance had never been applied in connection withany prior application.

The allegation that the Board enlisted PlannerBanisch to reinterpret the town ordinance bufferprovision is denied. It is admitted that Mr.Banisch did not cite to legal president orplanning treatise but it is denied that he failedto cite to any other authority. It is admitted thatMr. Banisch interpreted the ordinance in theJuly 20, 2014 memo. The defendants admit thatthe interpretation of the buffer ordinance hadnever been applied in connection with any otherprior application, but state that this is because ithad never been raised as an issue before theplaintiff’s application.





162

On September 4, 2014, the Board rejected the BTCRD’s expert’s view thatdetention basins were “antithetical” to a buffer and voted that the basinsconstituted permissible construction in ISBR’s eastern buffer areas in accordancewith the Township’s buffer ordinance subject to the Board’s approval. But theBoard’s Chairman, Jeffrey Plaza, nonetheless expressed concerns about theeastern basin’s size and its potential impact on screening from ISBR’s easternneighbors. He noted that screening would “drive the ultimate decision for Boardmembers as to whether specific approval is given” for ISBR’s drainageimprovements in the buffer.

The allegations in this paragraph are admitted.

163

ISBR’s existing plans, however, already provided for extensive natural plantedscreening on the Property’s eastern boundary. ISBR had incorporated into itslandscaping plan dozens of existing trees as required by the Township’s ordinancerelated to tree preservation. And it planned a series of new evergreen trees to beplanted on the eastern property boundary to create additional screening. Therewas no inadequacy in that planted screening.

The defendants deny the allegation that ISBR’sexisting plans provided for extensive naturalplanted screening on the property’s easternboundary. The defendants admit that ISBRincorporated into its landscaping plan existingtrees as required by the township ordinance. Thedefendants admit the allegation that ISBRplanned a new series of evergreen trees. Thedefendants deny the allegation there was noinadequacy in the planted screening.

164

On September 8, 2014, four days after the public hearing in which Mr. Plazaraised questions about the eastern screening, ISBR held a meeting with BoardPlanner Banisch, Township Planner Schley, and Board Engineer Quinn, amongothers. The planners and engineer raised no specific concerns about ISBR’snatural screening on the eastern border. Nonetheless, the Board Planner gaveISBR a suggestion: to moot any concerns the Board or objectors might raiseabout the eastern screening, they suggested that ISBR also add a fence, which is apermitted form of screening in a buffer under the Township’s ordinance. Theeastern boundary would then feature an impregnable array of all availablescreening devices: existing trees, plenty of new evergreen trees and bushes, and asix-foot high, solid-wooden fence.

The defendants admit the allegations in thisparagraph except the allegation that the easternboundary would then feature an “impregnablearray of all available screening devices.” Thedefendants are without sufficient information toadmit or deny this allegation.

165ISBR complied with the suggestion of the Board’s planners and engineer. ISBRsubmitted revised plans, including a revised landscaping plan that included a six-foot fence.

Admitted.





166

ISBR also made other small changes suggested by the Board professionals. Forexample, it shifted drainage features within the eastern buffer in order to preserveexisting trees.

The defendants admit that ISBR made othersmall changes suggested by Board professionals,which included shifting draining features withinthe eastern buffer.

167

These changes appeared to have resolved the eastern screening concerns. Whenthe Board and its experts subsequently discussed whether ISBR should plant anysupplemental vegetation in the eastern buffer, Mr. Plaza recommended, instead,that the issue be “delegated and deferred . . . as a condition of approval to thelandscaping subcommittee” because adding any more trees threatened to chokeexisting trees of sunlight and nutrients. Mr. Plaza explained that “by doing it thisway we will make sure that [planted screening] actually meets the purpose and itcould be sustained.” ISBR agreed, and to allay any other concerns aboutscreening, ISBR agreed that the Board’s landscaping committee would have theauthority to demand reasonable additional screening for all property lines afterconstruction was completed. The delegation of approval of the ultimatelandscaping to a Board landscaping committee had been a commonly appliedprocedure of the Board for years.

After reasonable investigation,, the defendantsare without sufficient information to admit ordeny the allegation that changes have appearedto resolve the eastern screening concerns. Theother allegations in this paragraph are admitted.

168

Objectors, however, remained unsatisfied. Ms. Caratzola, who lived miles awayfrom the Property, cross-examined ISBR Engineer Khan about whether a fencewas “an acceptable aesthetically pleasing solution” for the eastern neighbor’sproperty. No other objector used that particular “aesthetically pleasing”formulation. Mr. Khan noted in response that a fence “is one of the approved orone of the recommended screening methods in the ordinance.”

After reasonable investigation,, the defendantsare without sufficient information to admit ordeny the allegations.

169

By the time ISBR submitted the fifth iteration of its site plans in September 2014,it had screened the eastern boundary with a net addition of 37 evergreen trees andan unbroken row of three-foot-high evergreen bushes, in addition to a solid, six-foot fence. ISBR also made clear that the fence location could be adjusted towherever the Board preferred, including further inside its Property, closer to theeastern detention basin, or even on the other side of the detention basin (i.e.,closer to the proposed mosque building). ISBR did not view a fence as beingnecessary given the natural planted screening it had provided, but it was willing toaccommodate the Board with regard to the fence its planners had requested.Board Planner Banisch acknowledged that ISBR was “trying to be fairlyaggressive with their landscaping to create the best screening” possible.

It is denied that ISBR submitted five iterations ofthe site plans. ISBR submitted five iterations ofplan revisions but never a fully coordinated siteplan set, and the plans that were submittedlacked the detail required. Theallegationconcerning the number of trees is admitted.Thedefendants admit that ISBR made clear thatthe detention basislocation could be adjusted.The other allegations in this paragraph areadmitted.





170

Once ISBR submitted its last set of site plan revisions and concluded its case, andthe BTCRD indicated it did not have any more witnesses, the period for publiccomment commenced. Objectors again swarmed. One lay objector living almosta mile and a half away gave an extensive PowerPoint presentation on why a basinshould not be allowed in the eastern buffer. No time limits were imposed on anyindividual public commentators. The Board even allowed further experttestimony after the period for such evidence had closed, in contravention of itsown rules and over ISBR’s objection. Seeking to justify these rule violations, Mr.Plaza stated that this “was not a typical application in terms of both the length, thenumber of proceedings, the issues that have been presented with experts both infavor of the application and on behalf of objectors . . . . [So while] you mighthave a technical argument to make based on a very strict interpretation of ourrules, I think under the circumstances, we would have the ability to relax thoserules.” With the rules relaxed, the objectors continued to argue that the easternscreening was somehow inadequate or improper.

It is admitted that once ISBR submitted its lastset of site plan revisions and concluded its casethe BTCRD indicated it did not have any morewitnesses and the period for public commentcommenced. The defendants deny the allegationin the next sentence that objectors again“swarmed.” After reasonable investigation,, thedefendants are without sufficient information toadmit or deny the allegation concerning wherethe lay objector lived, although it is admitted thata power point was present. It is admitted that notime limits were imposed on any individualpublic commentators. It is admitted that theBoard allowed further expert testimony, butdenied it was in contravention of its own rules. Itis admitted that Mr. Plaza is accurately quoted,but denied that there was a violation of theBoard’s rules. It is denied that the Board’s ruleswere relaxed.

171

Ultimately, after restyling, reshaping, and resituating the drainage basins sixtimes; after reducing development to no more than 20% of the eastern buffer; andafter proposing a new fence, new trees, and new bushes to screen the parking lotfrom the eastern property line; ISBR was denied preliminary and final approval.

After reasonable investigation,, the defendantsare without sufficient information to admit ordeny the allegation concerning whether ISBRrestyled and reshaped the drainage basins sixtimes. It is admitted that preliminary and finalsite plan approvals were denied. Final approvalwas denied because the plan did not havesufficient details and for the specific issuesdescribed in the Resolution which is attached todefendants’ Answer as Exhibit-A. Preliminaryapproval was denied for the specific issuesdescribed in the resolution which is attached,attached to defendants’ answer as Exhibit A.





172

In its Resolution, the Board concluded that the basin in the eastern bufferexceeded the “limited” intrusions permitted by the buffer ordinance. Despite thefact that the Board’s parking determination had forced the basin into the buffer,and despite the Board experts’ approval of the location and size of the detentionbasin, the Board concluded that the drainage basin would “have to be removedfrom the buffer, if not entirely, then substantially,” applying Board PlannerBanisch’s brand new standard focused on “limited” intrusions. In withholdingapproval, the Board leaned heavily on the BTCRD’s expert testimony and on Mr.Banisch’s novel interpretation of the buffer ordinance.

It is admitted that the Board concluded that thebasin in the eastern buffer exceeded the limitedintrusions permitted by the buffer ordinance. Thedefendants admit that the Board concluded thatthe drainage basis had to be removed from thebuffer. It is denied that this was based on Boardplanner Banicsh’s standard and thecharacterization of the standard as “brand new”is also denied. It is denied that the Board “leanedheavily on BTCRD’s expert testimony and onMr. Banisch’s interpretation of the bufferordinance” and the characterization of theinterpretation as “novel” is also denied.

173

In addition to rejecting the detention basin, the Board stated that it probably wouldhave denied specific approval for a narrow, grassy drainage swale, which wouldchannel off-site runoff from the eastern buffer to the county’s stormwater system.The Board’s explanation ignored its experts’ praise for the swale, which they saidimproved site drainage and enhanced screening along the eastern boundary.

It is admitted the Board stated it would probablyhave denied specific approval for the swale butthe characterization of the swale an a “narrow,grassy” swale is denied. It is also denied that theBoard’s explanation ignored its experts’ praisefor the swale.

174

The primary reason the Board denied approval to the location of the drainagefeatures, however, was that they purportedly impacted screening. The Boardreasoned that “planted screening is a much more aesthetically desirablealternative” to a fence; ISBR’s natural screening would be impacted by thedetention basin; and, adopting Ms. Caratzola’s terminology, the Board concludedthat ISBR’s eastern neighbors “deserve more from a new use than inadequatescreening or adequate screening but by an aesthetically displeasing fence.” TheBoard provided no explanation for why ISBR’s planted screening in the easternbuffer was in any way inadequate and ignored the fact that the fence it nowdeemed “aesthetically displeasing” was added at the request of its own engineerand planners.

The defendants admit that the Board deniedapproval to the location of the detention basinbut denies that the Board denied approval to thelocation of other drainage features. Thedefendants deny the characterizationaspurportedly. The defendants admit the Boardreasoned that“planted screening is much moreaesthetically desirable alternative to a fence. Thedefendants admit that ISBR natural screeningwould be impacted by the detention basin. Thedefendants deny that the Board adopted Ms.Caratzola’sterminology. The defendants denythat the Board provided no explanation as to whyISBR’s planted screening in the eastern buffer isin any way inadequate and the defendants denythat any facts were ignored.





175

Additionally, even though ISBR’s final site plan showed a straight fence on theeastern property line, the Board speculated that there was a “distinct probability ofcausing damage to the roots of the existing trees unless the fence and the fenceposts are gerrymandered [sic] in such a fashion to avoid all roots.” The Boardignored the fact, specifically pointed out by ISBR, that the landscaping plandeliberately exaggerated the size of trees in relation to the scale of the plan.Indeed, ISBR’s landscaping plans reflected only a straight fence in the easternbuffer. Nonetheless, the Board then determined that the potential for a fence withasymmetrical fence posts violated the ordinance and, thus, required a “hardship”or “special reasons” variance, which it refused to grant. Notably, the Resolutionstated that it would have approved the fence if it had been moved farther west,away from the property line—a solution ISBR had repeatedly offered.

The defendants deny that just because the planssubmitted by ISBR showed a “straight fence”that the fence could be constructed “straight.”The defendants deny that the Board speculatedthat the fence would have to be gerrymanderedto avoid the existing tree roots. The defendantsdeny that the Board ignored any facts. Thedefendants admit the allegation that ISBRlandscaping plans reflected only a straight fencein the eastern buffer. The defendants admit thatthe Board determined that the potential for afence with asymmetrical fence posts violated theordinance. The defendants deny that theresolution stated it would have approved thefence if it had been moved farther west, asolution ISBR had repeatedly offered.





176

For good measure, the Board also manufactured an additional issue. ISBR hadproposed screening of the parking area from the eastern residential neighbor,which is all the Township’s screening ordinance requires. ISBR had alsorepresented to the Board that it would erect additional fencing in its front yard ifthe Board deemed it necessary and granted a variance, even though no such fencewas required by the ordinance. In its Resolution, the Board decided that ISBRmust have an additional fence in its front yard to screen its Property from theeastern neighbors and that this fence should be solid and six feet high.Remarkably, however, the Board then refused to approve the unnecessary six-footsolid-wooden front-yard fence it had itself just proposed, because the Townshipfencing ordinance prohibits solid fences in front yards and limits fence height tofour feet in front yards. The Board also said that any benefit of the fence it haditself just deemed necessary was “substantially outweighed by [] detrimentalaesthetics,” which it said constituted “a substantial detriment to the public good.”

The defendants deny the allegation that “forgood measure the Board also manufactured anadditional issue”. The defendants deny thatISBR had proposed screening of the parking areafrom the eastern residential neighbor which is allthe township’s screening ordinance required.The defendants deny that ISBR represented tothe Board it would even erect additional fencingin its front yard if the Board deemed it necessaryand granted a variance, even though no suchfence was required by the ordinance. Thedefendants admit that in its resolution, the Boarddecided that ISBR must have additional fencingin portions of the front yard setback are to screenthe easterly neighbors because ISBR did notprovide sufficient landscape screening in thatarea.. The defendants deny the six foot fencereferred to in this allegation was unnecessary.The defendants admit that the Resolution statesthe Board’s finding that any benefit of the fencewas substantially outweighed by detrimentalaesthetics” which constituted “a substantialdetriment to the public record.”

177

The Board’s decision to deny preliminary and final approval, based ultimately onwhat it deemed an “aesthetically displeasing” and “gerrymandered” fence, as wellas a front yard fence that ISBR never sought and did not need, was not pursuant toany compelling government interest and the Board did not act using the leastrestrictive means available to it. The Board treated ISBR differently and lessfavorably than other religious and secular applicants, and its determinations werearbitrary, capricious, and unreasonable.

The defendants deny that the Boards’ decision todeny preliminary and final approval was basedultimately on what it deemed aestheticallydispleasing and a gerrymandered fence. Thedefendants deny that the Board treated ISBRdifferently and less favorably than otherreligious and secular applicants and that itsdecisions were arbitrary, capricious andunreasonable.

178The Board also found that ISBR’s parking lot was not adequately screened fromthe southern and northern property lines.

Admitted.





179

On the south side of the Property, ISBR’s border included a preexisting thickly-wooded area. Beyond that border was a vacant lot. And farther beyond that wasthe residence of an individual objector to ISBR’s proposals. ISBR took every stepto ensure adequate southern screening. Rather than just rely on the existingheavily-wooded area, ISBR submitted a landscaping plan showing a solid screenof new evergreen trees. ISBR Engineer Khan also performed a screening test withtwo different vehicles’ headlights and determined that nearby houses wereadequately screened even just by the trees already in place, and that a small gap inthe screening of the Property from the driveway of the property to the south wouldbe remedied by the new evergreens.

It is admitted that on the south side of theproperty, ISBR’s border included a preexistingwooded area. It is admitted that beyond thatborder was a vacant lot. It is admitted that fartherbeyond that was the residence of an individualobjector. It is denied that ISBR took every stepto ensure adequate southern screening. It isadmitted that ISBR submitted a landscaping planshowing the solid screen of new evergreen trees.The defendants admit that ISBR Engineer Khanconducted what ISBR deems was a “screeningtest” with two different vehicles” headlights.While ISBR Engineer Khan may havedetermined that the screening was adequate, theBoard did not believe him.

180

Although the Board heard no conflicting testimony on this point, it stated that itwas unpersuaded by Mr. Khan’s tests because they were “scientifically unreliableand unconvincing” and “had no controls,” even though Mr. Khan tracked theheight of the headlights and their visibility across the southern boundary. TheBoard’s underlying concern was apparently that Mr. Khan admitted that, when heperformed his headlight test, he could see headlights from one specific point in thedriveway of the property to the south. But the Board ignored the obvious pointthat, as Mr. Khan noted, his headlight test was performed only with existingvegetation—before ISBR had added the screening provided on its landscapingplan, which would block the view of any headlights.

It is admitted that the Board heard no conflictingtestimony but found Mr. Khan’s testimonyregarding the testing he did to be unpersuasive.The Board need not accept testimony, eventhough uncontradicted. The allegation about theBoard’s underlying concern is denied. It isdenied that the Board ignored an “obvious point”made by Mr. Khan.

181

Moreover, ISBR had agreed to subject its screening to Board scrutiny afterapproval, just as many prior land-use applicants had been permitted to do. Forexample, commenting in June 2014 on an earlier application by the YMCA,Board Attorney Drill had explained that, when the Board “did not think there wasenough [screening, it] asked the applicant if they would agree to put in morescreening, the applicant agreed on the record, then [the Board] voted to approve it. . . .” And as noted above, on September 30, 2014, the Board Chairman proposeda similar arrangement for ISBR.

It is denied that ISBR agreed to subject itsscreening to Board scrutiny. The otherallegations in this paragraph are also denied.





182

The Board also noted that it could not assess the adequacy of the landscaping planbecause the plan lacked a “cross-section” viewpoint. Other applicants have notbeen required to show cross-sectional views of their landscaping plan. Nor is anysuch cross-section warranted: ISBR’s landscaping plan clearly demonstratesextensive pre-existing and new proposed natural screening to the south.

It is admitted that the Board stated it could notaccess the adequacy of the landscaping planbecause the plan lacked a cross-sectional viewpoint. It is denied that this requirement has notbeen imposed on other applicants. It is deniedthat cross-section is not warranted.

183As to the northern property line, the Board expressed concern that ISBR had notadequately screened its parking lot from Church Street—the main road in the area.

Admitted.

184

None of the planners for any of the parties—objectors, the Board, or ISBR—hadstated concerns about screening ISBR’s parking lot from Church Street, on thenortherly side of the Property. Nonetheless, ISBR’s site plan demonstrates that itsparking lot is to the rear of its building, hidden from Church Street by the ISBRmosque itself. To the extent the Board’s concern was that drivers on ChurchStreet might fleetingly glimpse the ISBR parking lot behind the mosque fromaround its edges while driving past, that view was blocked by extensive front-yardvegetation shown on ISBR’s landscaping plan, which showed a row of evergreentrees lining the parking lot’s northeast and northwest exposures.


185

ISBR could not have planted any additional screening at the northern propertyline. Church Street serves as the Property’s northern border, and that border ispunctuated by two driveways. The Township’s ordinance prohibits anyconstruction or plantings that would impede a driver’s ability to see at least 250feet down the road when stopped 10 feet away from Church Street.

Denied.

186

The Board’s decision to deny preliminary and final approval based on what itdeemed insufficient screening on the southern and northern boundaries was notpursuant to any compelling government interest and the Board did not act usingthe least restrictive means available to it. The Board treated ISBR differently andless favorably than other religious and secular applicants and its determinationswere arbitrary, capricious, and unreasonable.


187

The Board found that ISBR’s site plan failed to satisfy the requirements of theTownship ordinance and N.J.A.C. § 7:8 concerning stormwater drainage.Specifically, the Resolution faulted ISBR for failing to include a groundwater“recharge” system in its drainage design and for failing to submit certainsupplemental calculations. These bases for denial are untenable.

It is admitted that the Board found ISBR’s siteplan failed to satisfy the requirements of theTownship Ordinance and N.J.A.C. §7:8concerning storm water drainage. It is admittedthat the Resolution faulted ISBR for failing toinclude a groundwater recharge system. It isdenied that the bases for denial are untenable.





188

ISBR Engineer Khan worked closely with Board Engineer Quinn over a period ofyears to design an appropriate stormwater management system for the Property.As part of that process, Mr. Khan dug 11 test pits on the Property—a number thatthe Mr. Quinn testified far exceeded standards—to test the type and permeabilityof the soil. Mr. Khan also held numerous meetings with Mr. Quinn and submittedfive different iterations of ISBR’s stormwater management report to the Board.ISBR even undertook and accomplished the redesign work needed as a result ofthe Board’s faulty parking lot expansion.

It is admitted that Mr. Khan consulted with Mr.Quinn. The other allegations in this paragraphare admitted except that the defendants deny thatthe Board’s parking lot expansion was faulty.

189

Through this process, Mr. Khan and Mr. Quinn came to a consensus on a keyissue: the soil on ISBR’s Property was of a particularly impermeable variety. Asa result, ISBR was not required to use a groundwater “recharge” system, whichwould facilitate replenishment of groundwater levels. Such systems are requiredby applicable regulations only for areas, unlike ISBR’s Property, with permeablesoil.


190

By early 2014, all issues relating to stormwater appeared to be resolved. In areview letter dated January 10, 2014, Board Engineer Quinn acknowledged that“the bulk of our concerns regarding the drainage calculations and design havebeen addressed,” and he included just three minor comments on the stormwaterplans. At a public hearing on January 15, 2014, the Board reviewed Mr. Quinn’sremaining comments concerning ISBR’s stormwater plans. Mr. Quinn informedthe Board that ISBR Engineer Khan had submitted a revised report addressing hiscomments. Board Attorney Drill suggested that the submission by ISBR of a fullreport including these additional calculations be made a condition of approval.ISBR agreed. The Board members stated that they had no further questionsconcerning stormwater.

It is denied that by early 2014 all issues relatingto storm water appeared to be resolved. It isadmitted that the plaintiffs accurately quote fromMr. Quinn’s letter, though the characterization ofhis comments as “minor” is denied. It isadmitted that at a public hearing on January 15,2014, the Board reviewed Mr. Quinn’scomments concerning ISBR’s storm water plans.After reasonable investigation,, the defendantsremain without sufficient information to admit ordeny the remaining allegations in this paragraph.

191

ISBR submitted a revised stormwater management report to the Board on October9, 2014. This detailed, 226-page report addressed all the issues discussed by theBoard’s and ISBR’s engineers to date. At a public hearing on October 30, 2014,Board Engineer Quinn confirmed that he “had been working with [ISBR]’sengineer throughout the process to tidy up the stormwater management, so whatthey submitted [on October 8, 2014] was a compilation of all the bits and pieceswe had worked together so there were no surprises in it. There were very fewitems that were remaining as Mr. Khan has just indicated, so we’re satisfied with[the] design at this point.”

It is admitted that ISBR submitted a revisedstorm water management plan. The otherallegations in this paragraph are admitted exceptthe report did not address all issues discussed bythe Board.





192

Objectors, however, were far from satisfied. At a public hearing on August 4,2015, ISBR’s eastern neighbor, a lay person with no engineering expertise,questioned whether ISBR’s stormwater management system needed a “recharge”system. Board Engineer Quinn dismissed the objector’s criticism. He informedthe objector that the engineers “took recharge off the table” because “it did notseem to make sense,” given the impermeable nature of the soil on ISBR’sProperty. Mr. Quinn assured the objector, “I am confident that the stormwatermanagement plan complies with the regulations.”

After reasonable investigation,, the defendantsare without sufficient information to admit ordeny the allegation about whether the objectorswere satisfied. It is admitted that at a publichearing on August 4, 2015, ISBR’s easternneighbor questioned whether ISBR’s stormwater management system needed a rechargesystem. It is denied that Board Engineer Quinndismissed the objector’s criticism. It is admittedthat he informed the objector that engineers“took recharge off the table” because “it is didnot seem to make sense.” It is denied that Quinngave any assurances to objectors.

193

Objectors nonetheless continued to press the issue of recharge. At a publichearing on September 8, 2015, an objector presented expert testimony by anengineer, Paul Fox. Mr. Fox repeated the opinions of the lay neighbor that ISBRwas required to have a recharge system, given the permeability of the soil on theProperty suggested by a county soil map. He also made various other technicalpoints regarding the ISBR stormwater plan. The Board then asked Mr. Quinn tosubmit yet another report addressing Mr. Fox’s concerns.

It is admitted that objectors continued to pressthe issue of recharge. It is admitted that at apublic hearing on September 8, 2015, anobjector presented expert testimony by anengineer, Paul Fox. It is denied that Mr. Foxrepeated the opinions of the lay neighbor thatISBR was required to have a recharge system. Itis admitted that he made other technical pointsregarding the ISBR storm water plan. It isadmitted that the Board asked Mr. Quinn toreview Mr. Fox’s concerns and submit a reportwith his opinion on the issues.

194

Mr. Quinn did not change his mind on the recharge issue. His view, after all, wasbased on specific testing of the soils on ISBR’s Property. Mr. Quinn alsopersonally performed extensive calculations rebutting Mr. Fox’s other criticismsof ISBR’s plans, which ISBR Engineer Khan verified and agreed with.

It is denied that Mr. Quinn did not change hismind on the recharge issue. After reasonableinvestigation,, the defendants are withoutsufficient information to admit or deny theallegation that Mr. Quinn’s view is based on thespecific testing of the soils on ISBR’s property.After reasonable investigation,, the defendantsare without sufficient information to admit ordeny the allegation about whether Khan agreewith Quinn’s calculations.





195

In his letter report dated September 28, 2015, Board Engineer Quinn rebutted Mr.Fox’s views, explaining that Mr. Fox misunderstood the type of soil that waspresent on ISBR’s Property, a point that had been demonstrated by Mr. Khan’sextensive on-site testing. Mr. Quinn explained yet again that there was norequirement of installing a recharge system for properties with the impermeabletype of soil that is present on ISBR’s Property. He also referenced hiscalculations addressing Mr. Fox’s other points.

It is denied that in his letter report datedSeptember 28, 2015, Board Engineer Quinnrebutted Mr. Fox’s views. It is denied that Mr.Quinn explained again that there was norequirement of installing a recharge system.

196

Nonetheless, given the insistence of the objectors on the recharge point and thefact that adding a recharge system would be “easy,” Mr. Quinn observed that itmight be “more expedient” for ISBR to “consider providing a recharge facilityand putting the issue to rest.” He did not opine that the addition of a rechargesystem was required. Mr. Quinn also reconfirmed that “the drainage system asdesigned complies with all applicable regulations.”

It is admitted that Mr. Quinn stated that it mightbe more expedient for ISBR to comply with theordinance requirement to provide a rechargefacility rather than apply for an exception fromhaving to provide recharge. The defendants denythe characterizations alleged by ISBR. Thedefendants deny that Mr. Quinn did not opinethat the addition of the recharge system wasrequired under the Township ordinance. Thedefendants deny the remaining allegations.

197

In October 2015, Mr. Quinn asked Mr. Khan to submit a proposed design for arecharge system, just in case the Board ultimately required ISBR to provide such asystem, contrary to Mr. Quinn’s advice. Mr. Khan submitted the proposed designincorporating a recharge system.

Denied.

198

However, seeking to avoid the addition of an unnecessary recharge system thatcould result in standing water on the Property, in October 2015, Mr. Quinn andMr. Khan discussed the possibility that ISBR might perform additional soil testingto avoid any request by the Board to add a recharge system to its site plan. Giventhat the close of the proceedings was imminent, the two engineers negotiatedlanguage for a proposed condition of preliminary approval: the Board wouldapprove ISBR’s stormwater plans on the condition that ISBR would either providea recharge system or perform additional soil testing to reconfirm that no rechargesystem was needed.






199

On October 29, 2015, ISBR’s counsel sent the proposed condition of approval toBoard Attorney Drill. Mr. Drill then provided that proposed condition to Boardmembers. The issue of recharge appeared to be resolved.

After reasonable investigation,, the defendantsare without sufficient information to admit ordeny the allegation that on October 29, 2015ISBR’s counsel sent to Board attorney Drill aproposed condition of approval regarding eitherproviding a recharge system or performingadditional soil testing to reconfirm that norecharge system was needed, that Board attorneyDrill then provided the condition to Boardmembers, and that the issue of recharge appearedto be resolved.

200

At the public hearing on November 3, 2015—the final public hearing prior to theBoard’s deliberations on ISBR’s application—the Board had its first and onlyopportunity to ask Board Engineer Quinn about his September 28, 2015 letterrebutting Mr. Fox’s criticisms concerning ISBR’s stormwater drainage. TheBoard elected to forgo this opportunity. Board Chairman Plaza opined that Mr.Quinn’s letter “could be taken into account by the Board at the time ofdeliberations” because “it was very concise and to the point.” After this hearing,the record for ISBR’s application was officially closed.

It is admitted that there was a public hearing onNovember 3, 2015 and it was the Board’s onlyopportunity to ask Board Engineer Quinnquestions about his letter rebutting Mr. Fox’scriticism’s concerning the ISBR storm waterdrainage. The other allegations in the paragraphare admitted.

201

Soon thereafter, the Board denied ISBR’s application, even for preliminaryapproval.

It is admitted that the Board denied ISBR’sapplication, even for preliminary approval,though the characterization of “soon thereafter,”is denied.

202

The Resolution first faulted ISBR for failing to satisfy the purported rechargerequirement—a requirement that Board Engineer Quinn had repeatedly opined didnot apply to ISBR’s Property, that ISBR had understood to be resolved throughthe agreed-upon condition, and that, in any event, ISBR had satisfied in designssubmitted to Mr. Quinn. The Board chose not to grant preliminary approvalsubject to the agreed-upon condition—a less restrictive means of ensuring thatISBR satisfied drainage requirements—or even on the condition of adding therecharge system.

It is admitted that the Resolution faulted ISBRfor failing to satisfy the purported rechargerequirement. It is denied that Board EngineerQuinn repeatedly opined that the rechargerequirement did not apply to ISBR’s property.The defendants are without sufficientinformation to admit or deny any allegationconcerning what ISBR understood. It is deniedthat the Board chose not to grant preliminaryapproval subject to the agree upon conditionbecause there was no agreed upon condition.





203

The Board’s main basis for denial, however, was that ISBR “deci[ded] not tosubmit to the Board the information it submitted to Mr. Quinn.” (Emphasis inoriginal.) The Board stated that “it would be inappropriate to delegate review andapproval of essential elements of a development plan such as stormwaterdrainage, which is a matter vital to the public health and welfare.” The additional“information” to which the Board was referring was the calculations performed byBoard Engineer Quinn himself, which ISBR Engineer Khan had verified andagreed with. In other words, the Board faulted ISBR for not sharing with the layBoard highly technical engineering calculations—the sort of calculations Boardmember Mary Pavlini characterized as “Greek” to her and her fellow Boardmembers—that were performed by the Board’s own engineer and were alwaysaccessible to the Board through its engineer. The Board had also expresslydisclaimed an opportunity to review the updated stormwater calculations.

It is admitted that the Board’s main basis fordenial was that ISBR decided not to submit tothe Board information it submitted to Quinn. Theallegation concerning the Board stating it wouldbe inappropriate to delegate review and approvalof essential elements of the development planssuch as storm water drainage is admitted. It isdenied that the additional information to whichthe Board was referring were the calculationsperformed by Board Engineer Quinn himself. Itis denied that the Board faulted ISBR for notsharing with the lay Board highly technicalengineering calculations. It is denied that theBoard also expressly disclaimed an opportunityto review the updated storm water calculations.

204

The Board’s approach to ISBR’s application was in sharp contrast to how it hastreated other applicants. As detailed further below, the Board has previouslydelegated authority to its engineer to review stormwater drainage plans. Indeed,in multiple cases the Board has granted final site plan approval on the conditionthat the applicant would revise its stormwater drainage plans, and the Board hasdelegated the authority to review the changes to its engineer.

The allegations in this paragraph are denied. It isdenied that the Board previously delegatedauthority to its engineer to approve a site planbased on his review of storm water drainageplans as differentiated from delegating review ofchanges to a storm water drainage plan that theBoard has approved in tentative form but whichneeded some minor revisions.

205

The Board’s decision to deny preliminary and final approval based on ISBR’salleged failure to submit the recharge design and the calculations that were in thepossession of its own engineer was not pursuant to any compelling governmentinterest. Nor did the Board apply the least restrictive means available to it. TheBoard treated ISBR differently and less favorably than other religious and secularapplicants and its determinations were arbitrary, capricious, and unreasonable.

Denied.

206The Resolution concluded that ISBR’s plans failed to satisfy fire departmentaccess requirements because its “internal circulation system will not be able tohandle access and circulation of fire trucks in a safe manner.”

Admitted.





207

In fact, ISBR more than satisfied all fire truck access requirements. Not only didit comply with the local ordinance regarding width of fire lanes, it generated andsubmitted to the Board an engineering drawing and fire service plandemonstrating that the Township’s largest fire truck was able to access the entiresite, including the fire lanes and the parking aisles of the parking lot. Using asimulation program called AutoTurn, the ISBR plan demonstrated the preciseangles at which the fire truck could clear the turns in the back of the parking lot.The Township’s largest fire truck was shown to have complete access around thelot, well beyond what is required by law.

It is denied that ISBR satisfied all fire truckaccess requirements. It is denied that ISBRcomplied with the local ordinance regardingwidth of fire lanes. It is admitted that ISBR useda simulation program called AutoTurn todemonstrate the movement of the fire trucks. Itis denied that the Town’s largest fire truck wasshown to have complete access well beyondwhat is required by law.

208

ISBR took this step even though the local ordinance requires fire truck access onlyto the structure of a building and not to every part of its parking lot and eventhough ISBR’s site plan met all the local ordinance’s requirements concerning firelanes and their width.

Denied.

209

Specifically, pursuant to Township Ord. § 21-46A.1(e)(5), “[a]ll buildings shallhave fire lanes in front of their public entrance which shall be at least 25 feet inwidth . . .” That is, a building must have at least one fire lane, and that fire lanemust be 25-feet wide. To the extent that an applicant provides additional firelanes “which are not otherwise required to be constructed,” those fire lanes musthave a “minimum width of 18 feet.” Ord. § 21-46A.1(e)(3). On ISBR’s plans,the fire lane in front of the public entrance is 25 feet wide, and the remaining firelanes are at least 20 feet wide. Thus, ISBR complied with the requirements ofOrd. § 21-46A.1(e) concerning fire lane width.

It is admitted that the plaintiffs accurately quotethe ordinance. It is denied that the ordinanceshould be interpreted to mean that a buildingmust have at least one fire lane and that the firelane must be 25 feet wide. In regard to theallegation that an applicant provides additionalfire lanes which are not otherwise required to beconstructed, the defendants’ position was thatthere was something which had to beconstructed. It is admitted that ISBR’s plansshow a fire lane in front of the public entrance tobe 25 feet wide and remaining fire lanes of atleast 20 feet wide. It is denied that ISBRcomplied with the requirements of Ord. §21-46A.1(e) concerning fire lane width.

210On December 19, 2014, the Township’s Fire Official, Janet Lake, issued a reviewletter acknowledging that ISBR’s site plan met the requirements of Ord. § 21-46A.1(e)(5).

Admitted.





211

Nonetheless, the Resolution claimed that ISBR’s fire truck access plans weredeficient. In doing so, the Board adopted wholesale arguments proposed by a layobjector named Cody Smith for the first time on January 20, 2015—nearly threeyears into ISBR’s application process. Mr. Smith had argued as follows: thepreamble to Ord. § 21-46A.1(e) states that “Means of access for Fire Departmentapparatus shall be constructed in accordance with N.J.A.C. 5:21-4. The NationalFire Codes Protection Association Standards will apply where the following is notspecific.” The ordinance then provides 10 subsections setting forth iterativerequirements, such as those relating to the width of fire lanes. Mr. Smithcontended one of those provisions was not sufficiently specific in itsrequirements, and therefore argued that two particular NFPA provisions he hadselected, NFPA 1141 §§ 5.4.1 and 5.4.2, should be deemed incorporated into theTownship ordinance.

It is admitted that the Resolution stated thatISBR’s fire truck access plans were deficientbecause the plans failed to meet the requirementsof Ord. §21-46A.1(e)(1). It is denied that theBoard adopted wholesale arguments proposed bylay objector. The defendants lay objectors couldnot present their comments until March 17,2015. It is admitted that the National Fire CodesProtection Association Standards apply wherethe following is not specific. It is admitted thatthe ordinance provides 10 subsections withrequirements such as those relating to the widthof fire lanes. The allegations describing Mr.Smith’s contentions are admitted.

212

These NFPA 1141 sections are located in a section titled “Parking Lots” thatprovides standards for the widths of parking aisles and parking stalls. ThoseNFPA provisions are designed to ensure that parked passenger vehicles havesufficient room to back out of parking spaces and to then turn around to exit theparking lot. They have no legal or logical connection to “means of access for FireDepartment apparatus,” which is the topic of Ord. § 21-46A.1(e).

It is admitted that NFPA 1141 are located in asection titled Parking Lots that provide standardsfor the widths of parking aisles and parkingstalls. It is denied that those NFPA provisionsare designed to ensure that passenger vehicleshave sufficient room to back out of parkingspaces and then turned around to exit the parkinglot. It is denied that the standards have no legalor logical connection to needs of access for firedepartment apparatus.

213

Moreover, the Township ordinance has its own provision governing the width ofparking aisles that sets forth different requirements from those of NFPA 1141. Ina review letter dated August 3, 2012, Township Planner Schley acknowledged thatOrd. § 21-39.3 contains the applicable rules governing parking aisle width. Thisprovision requires 24-foot parking aisles for 90-degree parking stalls. ISBRsatisfied the requirements of Ord. § 21-39.3.

It is denied that the Township ordinance has aprovision which governs the width of fire lanes.It is denied that Mr. Schley acknowledged thatthe ordinance governs fire lanes. The defendantsadmit that the provision in question requires 24foot parking aisles for 90 degree parking stalls. Itis denied that ISBR satisfied the requirements ofOrd. 21:39.3, but only as to aisles which don’tdouble as fire lanes.





214Given these facts, Mr. Smith apparently argued that the provisions he had selectedfrom NFPA 1141 applied for no reason other than because he thought ISBR’s siteplan did not comply with them.


215

Defendants’ own professionals uniformly rejected Mr. Smith’s argument based onthe supposed incorporation of NFPA 1141. As noted above, Township PlannerSchley confirmed that the Township’s own ordinance governed parking aislewidth, not NFPA 1141. Further, Fire Official Lake testified that the subsectionsof Ord. § 21-46A.1(e) set forth specific rules concerning fire access lanes, whichrendered NFPA standards inapplicable. Most directly, however, in a memo datedFebruary 11, 2015, Board Attorney Drill also opined that Mr. Smith’s purportedlegal interpretation was simply incorrect and that NFPA 1141 was inapplicable.Mr. Drill further opined that ISBR’s site plan complied with any applicable NFPArequirements.

The allegation that the defendants’ ownprofessional uniformly rejected Mr. Smith’sarguments is denied. The defendants deny theallegation that Township Planner Schleyconfirmed that the Township’s ordinancegoverned parking aisle width, not NFPA 1141.After reasonable investigation,, the defendantsare without sufficient information to admit ordeny the allegation that Fire Official Laketestified that the subsections of the ordinance setforth specific rules concerning fire access lanes,which rendered NFPA standards inapplicable.The defendants deny that Board Attorney Drillalso opined that Mr. Smith’s purportedly legalinterpretation was simply incorrect. Thedefendants deny that Mr. Drill opined thatISBR’s site plan complied with any applicableNFPA requirements.

216

Nonetheless, in its Resolution, the Board ignored the fire safety advice of its FireOfficial, ignored the planning advice of its Township Planner, ignored the legaladvice of its Board Attorney, and ruled that NFPA 1141 applied. Based on thatfaulty ruling, the Board then concluded that ISBR failed to provide for fire truckaccess, even though ISBR had proven that fire trucks could access all parts of itsProperty through fire lanes that met all local and state requirements. The Boardhas never applied these standards to any other applicant.

The defendants deny that the Board ignored thefire safety advice of its Fire Official. Thedefendants deny that this was a faulty ruling.The other allegations in this paragraph aredenied.

217

The Board’s decision to deny preliminary and final approval based on reasonspurportedly tied to fire truck access was not pursuant to any compellinggovernment interest, given that ISBR satisfied the local ordinance and showedthat even the Township’s largest fire truck could access all parts of its Property.The Board did not act using the least restrictive means available to it. The Boardtreated ISBR differently and less favorably than other religious and secularapplicants and its determinations were arbitrary, capricious, and unreasonable.

Denied.





218

The Board also concluded that ISBR’s internal traffic circulation plan failed tocomply with the Township ordinance and did not adequately guard theTownship’s health and safety. Specifically, the Board criticized ISBR’s trafficcirculation plan for allegedly failing to show how Sunday School children wouldbe dropped off in the parking lot and, according to the Board, for making undueuse of parking aisles.

It is admitted that the Board concluded thatISBR’s internal traffic circulation plan failed tocomply with the ordinance. It is admitted that theBoard criticized ISBR’s traffic circulation planfor failing to show how Sunday School childrenwould be dropped off.

219

The issue of Sunday School drop-off resulted from the Board’s unprecedented andunreasonable requirement that ISBR designate fire lanes on three sides of itsbuilding and that those fires lanes all be designated “no stopping and nostanding.” The Township’s applicable ordinance only requires fire departmentaccess on one side of a non-commercial building like ISBR’s. For good measure,the Board also blocked ISBR from staging drop-off in the spacious driveway atthe Property’s front because, according to the Board, cars dropping off childrenwould stack up to such an extent that they would back up across ISBR’s long U-shaped driveway and onto Church Street.


220

With no alternatives, ISBR planned for Sunday School children to be dropped offat the rear of the building. ISBR Engineer Adnan Khan provided a writtensupplemental internal circulation plan to the Board and also provided oraltestimony detailing the new drop-off requirements. According to Mr. Khan, thechildren being dropped off would exit their cars at the rear of the building, steponto the sidewalk under the supervision of an easily identifiable monitor wearinga vest, and enter the building from its public side entrance. If more than one cararrived at the same time, children could be dropped off under the supervision ofthe monitor by the adjacent handicapped parking spaces and walk a few steps ontothe sidewalk using the handicapped access aisles. Further, traffic signs wouldensure congregants were made aware that drop-off was to be done in that location.The drop-off location adjacent to the public entrance is identified on Figure 12 inred text below.

It is denied that ISBR had no alternatives. It isadmitted that ISBR Engineer Khan provided awritten supplemental internal circulation planand oral testimony. It is denied that Mr. Khantestified that children being dropped off wouldexit their cars at the rear of the building. It isdenied that there was any testimony concerningwhat would happen if more than one car arrivedat the same time. It is denied that traffic signswould ensure congregants were made aware thatdrop off was to be done at the location. It isadmitted that the drop off location adjacent tothe public entrance identified in Figure 12.

221

When Mr. Khan testified about this internal circulation plan and the new drop-offrequirements on September 30, 2014, none of the Board members raised anyconcerns or asked ISBR Engineer Khan any questions about any aspect of parkinglot operation. To the contrary, in response to a community member’s objectionthat Mr. Khan was not a traffic expert, the Board’s Chairman, Jeffrey Plaza, ruledthat “[i]t is within the ken of an engineer” to testify to internal circulation issues,and the Board admitted Mr. Khan’s testimony.

It is admitted that Board members did not askany questions at that time. The description ofMr. Plaza’s remarks is admitted, except that histestimony was not accepted as traffic engineer.





222

Objectors subsequently engaged ISBR Engineer Khan in protracted cross-examination seeking to manufacture safety concerns. At a January 2015 hearing,after Mr. Khan’s cross-examination concluded, Board member Pavlini posed theonly questions from anyone on the Board. Her questions elicited testimonyshowing that all of the objectors’ concerns had been fully addressed.

It is admitted that objectors cross-examinedISBR Engineer Khan. The characterization thatthe cross-examination was protracted is denied.It is denied that Board member Pavlini was theonly one who asked any questions about thesafety concerns. After reasonable investigation,,the defendants are without sufficient informationto admit or deny the allegation about theconcerns of the objectors.

223

In its Resolution, the Board claimed that ISBR’s proposal was inadequate becausethe Board needed to see “a written plan incorporating the use of” monitors, and itwould not rely on a verbal explanation of the drop-off process. The Resolutioncomplained that ISBR Engineer Khan failed to demonstrate this drop-off plan onISBR’s site plan. Internal circulation of pedestrians and child drop-offprocedures, however, are not required to be on site plans by the ordinance cited bythe Board. The ordinance requires a description of site features—like roads andpathways—not an operational overview of parking lot operations. Moreover, Mr.Khan had laid out in writing the drop-off procedures, including the use of amonitor wearing an identifying vest, in his May 2014 supplemental internalcirculation report. Mr. Khan also incorporated the relevant site features of hiscirculation report into ISBR’s next set of revised site plans in September 2014.

The sentence describing the Board Resolution isadmitted. It is denied, however, that theResolution complained that ISBR EngineerKhan failed to demonstrate the drop off plan. Itis denied that internal circulation of pedestriansand drop off procedures are not required to be onsite plans. It is admitted that the ordinancerequires a description of site features like roadsand pathways but it is denied that the ordinancedoes not require an operational overview ofparking lot operations. It is admitted that Mr.Khan laid out in writing the drop off procedures,but his report did not show the Board how itwould work. It is denied that Mr. Khan alsoincorporated the relevant site features of hiscirculation plan into ISBR’s next set of revisedsite plans.

224

In passing, the Board also mentioned the alleged overuse of parking aisles forpedestrians as a basis for rejecting ISBR’s circulation plan, citing Ord. § 21-39.3(a)(3)(b). This provision, however, is inapplicable since it pertains only tovehicular circulation. Moreover, ISBR minimized the use of parking aisles to thefullest extent possible given the fire lane requirements imposed by the Township.

It is denied that the Board also mentioned thealleged overuse of parking aisles for pedestriansas a basis for rejecting ISBR’s circulation plan.It is denied that the cited provision isinapplicable.





225

The Board treated ISBR differently than similarly situated houses of worship. Asdetailed further below, for example, when in 2001 the Board raised concernsabout traffic circulation for the Chabad Jewish Center, it determined that a trafficmonitor would be needed to direct pedestrians and vehicles on certain high-trafficdays. Even though the applicant had not submitted a plan to this effect, the Boardnevertheless granted preliminary and final site plan approval, simply listing thetraffic monitor as a condition. The Board has not required any other house ofworship to document a drop-off plan in a circulation report or site plan.

It is denied that the Board treated ISBRdifferently. The allegations concerning theChabad are not valid comparators.

226

The Board’s decision to deny preliminary and final approval based on purportedhealth and safety concerns for Sunday School students was not pursuant to anycompelling government interest, given that no genuine health or safety issueexisted and ISBR had submitted written report and oral testimony detailing itsplans. The Board did not act using the least restrictive means available to it. TheBoard treated ISBR differently and less favorably than other religious and secularapplicants and its determinations were arbitrary, capricious, and unreasonable.


227The Resolution determined that the site lighting proposed by ISBR was lacking indetail and “too intense for the adjacent residential lots.” The Board stated that itsought to reduce ISBR’s site lighting to 0.3 footcandles.

The allegations in this paragraph are admitted.

228

Township Ord. § 21-41.3 limits illumination for nonresidential uses to an averageof 0.9 footcandles. ISBR’s detailed lighting plan proposed average illuminationlevels of 0.7 footcandles in the driveways and 0.81 footcandles in the parking lot.Given that ISBR’s average illumination levels were below the maximumprescribed by Ord. § 21-41.3, ISBR satisfied its requirements.

The allegation that the ordinance limitsillumination for nonresidential uses to anaverage of 0.9 footcandles is admitted. It isdenied that given ISBR’s average illuminationlevels were below the maximum prescribed bythe ordinance, ISBR satisfied its requirements.

229

The Resolution, however, asserted that ISBR nonetheless did not demonstratecompliance with the prior subsection of the Ordinance, § 21-41.2, which gives theBoard “development plan approval” authority to ensure site lighting that“minimize[s] undesirable off-premises effects.” The Board found ISBR’s lightingplan too “lacking in detail” to satisfy this requirement.

The allegation concerning the Board ordinance isadmitted. The allegation concerning the lightingplan is admitted.





230

The Board has no discretion under Ord. § 21-41.2 to generate alternativemaximum illumination levels for particular applicants. Even if it did, however, itwould be limited to setting lighting levels to “minimize[s] undesirable off-premises effects.” Here, ISBR’s lighting plan showed that the illumination levelsat ISBR’s boundaries were “0.0” footcandles, i.e., there were no off-premiseseffects from its site lighting. Accordingly, even under the Board’s own strainedreading of Ord. § 21-41.2, it had no basis to challenge ISBR’s site lighting.

It is denied that the Board has no discretionunder Ord. §21:41.2. The Board still hasdiscretion to make certain that there is nonegative impact. It is admitted that the Boardwould be limited to setting light levels tominimize undesirable off-premises effects. Theallegation that the Board’s leading of theordinance was strained is denied.

231

ISBR’s lighting plans also demonstrated adequate detail. ISBR submitted severaldifferent iterations of a lighting plan that demonstrated the level of proposedillumination throughout the Property. At the specific request of Board AttorneyDrill, ISBR also prepared a lighting exhibit that demonstrated no illumination atground level, 5 feet above ground level, and 10 feet above ground level at theProperty line. ISBR’s lighting plan demonstrated that the average illumination inthe driveways and the parking lot was well below the maximum of 0.9footcandles. Thus, ISBR’s plans satisfied the requirements of Ord. §§ 21-41.2and 21-41.3.

It is denied that ISBR’s lighting plandemonstrated adequate detail. It is admitted thatISBR submitted several different versions thelighting plan. It is admitted that ISBR prepared alighting exhibit. It is admitted that ISBR’slighting plan demonstrated the averageillumination in the driveways and parking lotwas below the maximum of 0.9 footcandles. It isdenied that ISBR’s plan satisfied therequirements of the ordinance.

232

At a public hearing on January 6, 2015, ISBR agreed to moot any possibleconcerns by reducing the average illumination across the site to 0.5 footcandles asa condition of approval, even though its plan already showed that its illuminationwas under permitted levels. ISBR had previously also agreed to a post-approvaltest of its installed lighting by a Board committee to ensure the Property’s lightingcomplied with the Township’s ordinance and the Board’s requirements. TheBTCRD’s counsel, nonetheless, asked the Board to require ISBR to submit yetanother lighting plan demonstrating an average illumination limit of 0.5footcandles. Board Attorney Drill advised the Board that it did not have a basis torequire ISBR to submit the revised plan requested by the BTCRD’s counselbecause ISBR’s plan already complied with the 0.9 footcandle limit of Ord. § 21-41.3. Mr. Drill stated that if ISBR did not wish to voluntarily limit its lightingfurther, “I am uncomfortable telling the Board that they have the authority to tell[ISBR] if you don’t do that we are going to deny your application.” The Boarddisregarded this advice from its own attorney.

It is denied that ISBR agreed to moot anypossible concerns by reducing the averageelimination to 0.5 footcandles. It is admitted thatISBR had previously agreed to a post-approvaltest of its installed lighting. The other allegationsin this paragraph are admitted.





233

The Board has approved lighting plans with average illumination levels of at least0.88 footcandles for other houses of worship. The Board has also grantedapproval to a house of worship on the condition that the applicant would submit alighting plan after approval. The Board made no such allowances for ISBR.

It is admitted that the Board has approvedlighting plans with average illumination levels ofat least .88 footcandles for other houses ofworship. The remaining allegations in thisparagraph are denied.

234

The Board’s decision to deny preliminary and final approval based on purportedillumination intensity was not pursuant to any compelling government interest,given that ISBR met the requirements of the local lighting ordinance and that itslighting had no off-premises impact. The Board did not act using the leastrestrictive means available to it. The Board treated ISBR differently and lessfavorably than other religious and secular applicants, and its determinations werearbitrary, capricious, and unreasonable.

It is denied that the Board’s decision to denypreliminary and final approval was based on thelighting issue. It is denied the Board did not actusing the least restrictive means available to it. Itis denied that the Board treated ISBR differentlyand less favorably than other religious andsecular applicants and it is denied that theBoard’s determinations were arbitrary,capricious and unreasonable.

I. Community Reaction to the Board’s Denial

235

On December 8, 2015, hundreds of residents, many residing far from the ISBRsite, sought to attend the Board’s final hearing on ISBR’s application. The crowdin the Board’s meeting room reached 140 people, leaving another 35 residents tooccupy a room designated for overflow. That overflow room was also filled tocapacity. A local realtor who lives three miles from the Property recounted: “Iwas very gratified to see the outpouring of townspeople. . . . I felt it extremelyimportant to send a message to the board that they are accountable to theirconstituents; to have them look in our eyes as they voice their decision on themosque application.”


236

The Board voted 4-2 to deny ISBR’s application for preliminary site planapproval. Board members Mary Pavlini and Randy Santoro voted in favor ofgranting preliminary approval. The Board voted 6-0 to deny ISBR’s applicationfor final site plan approval.

The defendants admit that the Board voted 4-2 togrant preliminary site plan approval but byoperation of law, this constituted a denialpursuant to N.J.S.A. 40:55D-9(a). It is admittedthat the Board voted 6-0 to deny ISBR’sapplication for final site plan approval.





237

According to local news reports, community members attending the hearingapplauded with delight when the Board voted down ISBR’s application. Asdescribed by a local news source, “‘Party! Party! Party!’ yelled one Church Streetresident as she jumped up and down outside with other residents in a circle. Theyhugged, cheered and danced at the decision.” Another resident said, “Yes I’mhappy. I wish them the best of luck and hope they find a property with six-plusacres to build. Or I hear they are building a mosque in Bridgewater, they can gothere.” An ISBR neighbor stated, “I’m so glad the vote was so strong inopposition, and I’m very happy about the turnout. Never did I think this decisionwas in the bag at all, though to me it was obvious.”

The allegations in this paragraph are admitted,but the defendants deny that it had any effect onthe vote of the planning Board.

238

The Bernardsville News reported on online reaction to the denial. It noted thatsome residents claimed the denial was only about land use issues. For example,one poster stated that the “property in question is in the middle of a residentialarea across from the fire house.” As the article recounted, however, other poststook a different tone, making comments like: “You’re probably not ready forcourses in Sharia Law at this point.” The article noted that the “controversialproposal from Republican presidential candidate Donald Trump to preventMuslims from entering the country was also mentioned by one writer.” Thatonline poster wrote: “We Republicans are mad as heck and not going to take itany more [sic]! . . . Stand behind Trump and his ‘banning’ of Muslims from ourAmerica!’” The newspaper also reported other comments, including: “Thank youplanning board – let them build it in the Great Swamp at low tide,” and “Kudos toyou Bernards Twp. Let them go elsewhere.”

The allegations in this paragraph are admitted,but the defendants deny that it had any effect onthe vote of the planning Board.

239Lori Caratzola celebrated on Facebook, posting an article about the denial with thewords, “We did it!”


J. Individualized Assessment and Impact on Interstate Commerce

240

The substantial burdens on ISBR discussed above were imposed in theimplementation of a system of land use regulations, under which a governmentmakes, or has in place procedures or practices that permit the government tomake, individualized assessments of proposed uses for property.

This is a legal conclusion, which does notrequire a response from the defendants. To theextent the plaintiffs mean to imply in thisparagraph that there are facts which support thelegal theories, the allegation is denied





241

Portions of ISBR’s funds expended on purchase of the Property, as well aspayments to its professionals related to the Board proceedings described herein,were transferred by means of financial institutions located outside the State ofNew Jersey, as well as through the use of interstate wires. The construction ofISBR’s proposed mosque will affect interstate commerce, including throughpayment to those constructing the mosque; purchase of materials necessary to build the mosque; use of interstate highways for the transportation of persons and materials used to construct the mosque; and other activities related to the construction of the mosque. If built, ISBR’s mosque will affect interstatecommerce by or through, amongst other things, the employment of any part orfulltime employees that will use modes of transportation affecting interstatecommerce, and the purchase of goods and services related to the mosque’songoing operations and maintenance in a manner that will affect interstatecommerce.

After reasonable investigation, the defendantsremain without sufficient information to admit ordeny the allegation that ISBR’s funds expendedon purchase of the property were transferred bymeans of financial institutions located outsidethe State of New Jersey. After reasonableinvestigation, the defendants are withoutsufficient information to admit or deny theallegation concerning the manner in which theconstruction of ISBR’s proposed mosque willeffect interstate commerce.

K. ISBR Has Been Excluded from the Township Where Similarly Situated Institutions Have Not

242

The Board’s refusal to treat ISBR as it treated other land use applicants reflectedan approach advocated by the BTCRD’s counsel in a June 12, 2014 argument tothe Board. What the Board has done with respect to prior applications, he argued,“has absolutely no bearing on proofs that were to be submitted as part of [this]application for development.” That argument contravened the requirements ofRLUIPA, the U.S. and New Jersey constitutions, and New Jersey state law.

It is denied that the Board’s refusal to treat ISBRas it treated other land use applicants reflected anapproach advocated by the BTCRD’s counsel.The other allegations in this paragraph are alsodenied.

243

By denying ISBR’s application for preliminary and final site plan approval, theBoard treated ISBR differently and worse than the Board and the Zoning Boardhave treated similarly situated religious and secular institutions. The Boardtreated ISBR differently because ISBR is a Muslim congregation.

The allegations in this paragraph are denied

244

Chabad Jewish Center (“Chabad”) is located at 3048 Valley Road in a residentialzone. On or around August 8, 1995, Chabad submitted an application seekingpreliminary and final site plan approval to construct an addition to an existingstructure and to use the building as a 40-seat synagogue. On November 7, 1995,the Board granted both preliminary and final site plan approval after two publichearings on the application and an approval period of less than three months.

All of the allegations in this paragraph areadmitted.





245

On Chabad’s site plan, it calculated its parking requirement as 17 spaces: 14spaces using the Township’s 3:1 parking ratio for churches, plus three spaces for aclergy residence. Chabad’s site plan noted that it was applying the “1 space / 3seats” ratio for a “house of worship.” Chabad offered to provide three additionalparking spaces over the required number for a total of 20 spaces. At the Board’shearings concerning Chabad’s application, there was no debate over the requirednumber of parking spaces, and the Board did not perform an individualizedinquiry into Chabad’s actual parking needs. In the resolution approving Chabad’sapplication, the Board stated that Chabad’s parking proposal was “adequate.”


246

In addition, Chabad proposed a combination of a fence and planted screening toscreen its Property from the adjacent residences. At the Board’s hearingsconcerning Chabad’s application, Township Planner Peter Messina stated that thefence was an “appropriate” element of Chabad’s screening.


247

Chabad’s site plan included a driveway located in the 50-foot buffer areabordering the adjacent residential use. At the Board’s hearings concerningChabad’s application, there was no discussion of this buffer incursion. Nor didthe Board require Chabad to demonstrate that construction of the driveway in thebuffer area was essential to Chabad’s plan. Rather, the Board approved Chabad’splan without any discussion of the buffer incursion.


248

In sum, with respect to Chabad’s 1995 application, the Board treated Chabaddifferently and better than ISBR, including in the following ways:• The Board approved a parking calculation for a non-Christian house of worshipusing the 3:1 ratio set forth in the Parking Ordinance, and it did not perform anindividualized inquiry into Chabad’s parking need.• The Board approved a fence as an appropriate screen.• The Board permitted a buffer incursion without requiring Chabad to prove thatthe incursion was essential to its plan.• The Board approved Chabad’s application after two public hearings and lessthan three months.

The defendants deny that the Board treatedChabad differently and better than ISBR.





249

On or around November 30, 2000, Chabad applied for approval of a two-phaseexpansion of its synagogue. Phase I included a 2,581-square-foot addition to theclergy residence, an 18,126-square-foot building for classrooms and offices, and a67-space parking lot. Phase II included a 6,318-square-foot building housing a200-seat sanctuary and a 175-seat social hall. Chabad sought preliminary andfinal site plan approval for Phase I, and preliminary site plan approval for PhaseII. On May 8, 2001, the Board granted both approvals after two public hearingson the application after less than six months.

It is admitted that on or around November 30,2000, Chabad applied for approval of a twophase expansion of its synagogue. It is admittedthat phase one included a 2,581 square footaddition to the clergy residence, an 18,126square foot building for classrooms and offices,but it is denied it was a 67 space parking lot. Theother allegations in this paragraph are admitted.

250

The Board calculated Chabad’s parking requirement as 94 spaces: 67 spaces forthe 200-seat sanctuary, 25 spaces for the classrooms, and 2 spaces for the clergyresidence. In other words, the Board applied the Township’s 3:1 parking ratio forchurches to the number of seats in the sanctuary. The Board did not take the 175-seat social hall into account in its parking calculation. While the social hall couldhave added 58 spaces to the parking calculation (175 seats/3 seats per space),Chabad represented that it would not use the social hall at the same time as thesanctuary, and the Planning Board chose not to include the social hall in itscalculation.


251

The Board then granted Chabad an exception from the 94 spaces required by theParking Ordinance and permitted Chabad to build a lot with only 69 spaces. TheBoard justified this decision by stating that the “applicants also testified that thesanctuary and classrooms would not be used simultaneously and that the actualmaximum parking demand on-site at any one time would therefore be 69 spaces.”The Board also noted that Chabad had entered into an agreement with neighboringMillington Baptist Church to use its lot for overflow parking. The Boardpermitted this arrangement on the condition that Chabad provide for an off-dutypolice officer to regulate vehicle and pedestrian traffic between the two houses ofworship.


252

Chabad’s lighting plan noted that the average illumination would be 0.88footcandles. A review letter by Township Planner Peter Messina stated that theTownship ordinance permitted a maximum of 0.9 footcandles. The Boardaccepted Chabad’s proposed site lighting without objection.






253

Chabad was not required to submit a separate plan demonstrating fire vehiclecirculation throughout its parking lot. Nor was Chabad required to designate firelanes prior to obtaining site plan approval. In a post-approval letter dated June 13,2002, Fire Official Janet Lake stated that “[n]ew fire lanes will be designated andinstalled prior to occupancy of the new facility.”


254On Chabad’s site plan, the parking aisles for 90-degree parking stalls were 24 feetwide. The Board did not apply NFPA 1141 to Chabad’s proposal. Rather, itapproved the proposed 24-foot aisles.


255

The Board resolution approving Chabad’s expansion application included anumber of conditions requiring significant amendments to Chabad’s site plan,including the elimination of a detention basin, the addition of a trench, andchanges to the landscaping plan. The Board nonetheless granted final approval toPhase I and preliminary approval to Phase II. The Board’s approval delegatedauthority to review the anticipated site plan amendments to the TownshipEngineer.


256

In sum, with respect to Chabad’s expansion application in 2000, the Board treatedChabad differently and better than ISBR, including in the following ways: • TheBoard approved a parking calculation for a non-Christian house of worship usingthe 3:1 ratio set forth in the Parking Ordinance; it then permitted a downwarddeparture from that requirement. The Board took into account alternative parkingarrangements in granting that departure. The Board ultimately required only 69parking spaces for a 27,000-square-foot complex—over six times as large asISBR’s proposed mosque. The Board did not grant ISBR such relief.• The Boardpermitted Chabad to employ an off-duty police officer to ensure pedestrian safety,while in ISBR’s case it did not approve the proposed use of a monitor to ensurepedestrian safety. • The Board approved Chabad’s site lighting plan with anaverage illumination level of 0.88 footcandles, while it faulted ISBR’s plan, whichproposed average illumination levels of 0.7 and 0.81 footcandles. • The Board didnot require Chabad to provide a separate fire service plan or to designate fire lanesprior to obtaining site plan approval. • The Board applied less restrictiverequirements concerning parking aisle width to Chabad.• The Board delegatedapproval of Chabad’s site plan amendments, including drainage and landscapingelements, to the Township Engineer, while in ISBR’s case, the Board refused todo so. • The Board approved Chabad’s application after two public hearings andin less than seven months.

It is denied that with respect to the Chabad’sexpansion application in 2000 that the Boardtreated Chabad differently and better than ISBR.





257

Congregation B’nai Israel (“B’nai Israel”) is located at 40 Whitenack Road in aresidential zone. In or around November 1993, B’nai Israel submitted anapplication seeking preliminary and final site plan approval to construct a 25,808-square-foot complex including a synagogue, religious school, and nursery school.On March 15, 1994, the Board granted both preliminary and final site planapproval after two public hearings on the application, less than five months aftersubmission.


258

B’nai Israel’s proposed facility contained at least 750 seats. The Board calculatedB’nai Israel’s parking requirement under the Parking Ordinance as 138 spaces;that is a less restrictive ratio than 3:1, which is provided in the Parking Ordinance.B’nai Israel requested an exception to the 138-space parking requirement andproposed a total of 80 spaces: 57 spaces in a paved lot, and 23 spaces in a gravellot. B’nai Israel also proposed the use of valet parking in the event thatattendance reached “peak capacity.”

All of the allegations in this paragraph areadmitted, except that the proposed facilityincluded 745 seats.

259

The Board granted the requested parking exception. It noted that “[t]he size of theproposed parking areas is constrained by the locations of the proposed septic fieldand of the wetlands area on the Property,” and that “strict enforcement of therequirement regarding the number of parking spaces to be provided would beimpracticable or would exact undue hardship.” The Board suggested that B’naiIsrael add a grass-covered parking lawn for overflow parking, and it granted avariance to enable B’nai Israel to locate this parking lawn within 50 feet of therear property line.


260

At one of the public hearings concerning B’nai Israel’s application, the TownshipPlanner recommended that B’nai Israel provide an alternate service driveway onthe site.B’nai Israel’s engineer proposed construction of the service driveway in thewesterly 50-foot buffer adjacent to the neighboring residential use. The Boardapproved this proposal. The Board did not require B’nai Israel to demonstratethat construction of the driveway in the buffer area was essential to B’nai Israel’splan.






261

The Board resolution approving B’nai Israel’s 1993 application included anumber of conditions requiring significant amendments to B’nai Israel’s plans,including the addition of the service driveway, revisions to the stormwaterdrainage plan, and revisions to the landscaping plan. It also delegated authority toreview the anticipated amendments to the Township Engineer and the TownshipPlanner. The Board nonetheless granted final approval.


262

In addition, the Board resolution permitted B’nai Israel to submit a lighting planafter final approval was granted, subject to the approval of the Township Engineerand the Township Planner. B’nai Israel did not submit any lighting plan prior toobtaining final approval of its application.

Denied. The Board required as approval alighting zone plan to supplement the submittedlighting plan

263

In sum, with respect to B’nai Israel’s application, the Board treated B’nai Israeldifferently and better than ISBR, including in the following ways:• The Board permitted an exception from the required number of parking spaces.In granting this exception, the Board took into account alternative parkingarrangements and the constraints on B’nai Israel’s use of its land (which aresimilar to the constraints faced by ISBR). The Board ultimately required only 80parking spaces for a 25,808-square-foot complex. The Board did not grant ISBRsuch relief.• The Board permitted a buffer incursion without requiring B’nai Israel to provethat the incursion was essential to its plan.• The Board delegated approval of B’nai Israel’s site plan amendments, includingdrainage and landscaping elements, to the Township Engineer, while in ISBR’scase, the Board refused to do so.• The Board approved B’nai Israel’s plan without requiring the submission of anylighting plan prior to approval.• The Board approved B’nai Israel’s application after two public hearings and fourmonths.

Denied that the Board treated B’Nai Israeldifferently or better than ISBR

264

In or around March 1998, B’nai Israel applied for preliminary and final site planapproval for a 1,892-square-foot expansion of its facility. On September 22,1998, the Board granted both preliminary and final site plan approval after onepublic hearing on the application. The 1998 Board resolution noted that thepreviously approved parking plan was “substantially unchanged.” It again grantedB’nai Israel an exception from the parking requirement and permitted the 80existing spaces, in addition to the grass overflow parking area.

All of the allegations in this paragraph areadmitted, except that the 80 existing parkingspaces included the grass overflow parking areaand were not in addition to the grass overflowparking area.





265

The Board resolution approving B’nai Israel’s 1998 application included anumber of conditions requiring significant amendments to B’nai Israel’s plans,including revisions to landscaping, lighting, stormwater, and parking. Inparticular, the Board required landscaping changes in the westerly buffer adjacentto a residential use. The Board granted final approval and delegated authority toreview the anticipated plan amendments to the Township Engineer.


266

After the Board granted final approval in September 1998, then-TownshipAssistant Planner Schley issued a review letter in April 1999. In that letter, Mr.Schley suggested additional evergreen plantings to achieve adequate screening. Inother words, B’nai Israel and the Township Assistant Planner negotiated thedetails of the buffer landscaping and screening after the Board granted finalapproval of B’nai Israel’s site plan.


267

On B’nai Israel’s site plan, the parking aisles for 90-degree parking stalls were 24-feet wide. The Board did not apply NFPA 1141 to B’nai Israel’s proposal.Rather, it approved the proposed 24-foot aisles. B’nai Israel was also not requiredto submit a separate plan demonstrating fire vehicle circulation throughout itsparking lot.


268

In sum, with respect to B’nai Israel’s 1998 application, the Board treated B’naiIsrael differently and better than ISBR, including in the following ways: • TheBoard permitted an exception from that the required number of parking spacesafter taking into account alternative parking arrangements. The Board did notgrant ISBR such relief. • The Board delegated approval of B’nai Israel’s proposedplan amendments, including drainage and landscaping elements, to the TownshipEngineer, while in ISBR’s case the Board refused to do so. • The Board grantedfinal approval to B’nai Israel without settling the details of the landscaping andscreening in the buffer area. The Board did not permit ISBR to negotiate thedetails of buffering, landscaping, or screening with the Township Engineer afterapproval. • The Board applied less restrictive requirements concerning parkingaisle width to B’nai Israel.• The Board did not require B’nai Israel to provide aseparate fire service plan, while it did require ISBR to do so. • The Boardapproved B’nai Israel’s application after one public hearing and six months.

The defendants deny that the Board treat B’NaiIsrael differently or better than ISBR





269

Millington Baptist Church (“Millington”) is located at 520 King George Road in aresidential zone. In or around 1998, Millington submitted an application to theBoard seeking preliminary site plan approval for construction of a 67,390-square-foot church with 1,200 seats, 21 Sunday School classrooms, and 403 parkingspaces. The proposed site was located on Mine Brook Road. The Board grantedpreliminary site plan approval in 1999.

All of the allegations in this paragraph areadmitted, except that as to the allegation that theBoard granted preliminary site plan approval in1999, the original Resolution was passedSeptember 7, 1999 and then amended/correctedResolution was passed October 3, 2000.

270

In 1999, the Board calculated the required number of parking spaces forMillington using the 3:1 parking ratio set forth in the Parking Ordinance forhouses of worship. The Board did not perform an individualized analysis ofMillington’s actual parking need. With respect to Millington’s 1998 application,the Board treated Millington differently and better than ISBR in that the Boardcalculated parking for a house of worship using the 3:1 parking ratio set forth inthe Township ordinance.


271

In 2004, the Board held hearings concerning final approval of Millington’s siteplan. During these hearings, Board Attorney Stuart Koenig and Township PlannerSchley both stated that Millington was not required to submit a copy of itsstormwater drainage plan to the Board in order to obtain final site plan approval.The Board ultimately denied Millington’s application for final site plan approvalbecause Millington’s preliminary approval had expired.

All of the allegations in this paragraph areadmitted, except that at the time referred to Mr.Schley was the Assistant Township Planner.

272

In sum, with respect to Millington’s 2004 application, the Board treatedMillington differently and better than ISBR by ruling that Millington was notrequired to submit stormwater plans in order to obtain final site plan approval. InISBR’s case, the Board cited ISBR’s alleged failure to submit adequatestormwater plans as a basis for denial of both preliminary and final site planapproval.

It is denied that the Board treated Millingtondifferently and better than ISBR.

273

In or around 2007, Millington submitted an application to the Zoning Boardseeking preliminary and final site plan approval, together with variance relief, inconnection with the construction of a youth and family ministry buildingalongside its existing church and education buildings. On May 7, 2008, theZoning Board granted preliminary and final approval after four public hearings onthe application.






274

In its 2007 application, Millington sought a variance concerning the requirednumber of parking spaces for its facility. In the Zoning Board resolution grantingpreliminary and final site plan approval, the Zoning Board noted that 384 parkingspaces were required under the Parking Ordinance, and that Millington hadinstead proposed 157 spaces. The Zoning Board characterized the proposed 157spaces as “significantly fewer than the number of spaces required by Ordinance.”Millington acknowledged that its on-site parking was inadequate during itsSunday morning peak use. Millington proposed the use of alternative parkingarrangements to supplement its on-site parking, including use of a nearbyshopping center parking lot or a shuttle service. The Zoning Board granted therequested parking variance on the condition that Millington provided 75 off-sitespaces along with a shuttle service to transport congregants to the church. Eventaking into account the off-site parking spaces, the Zoning Board permitted asignificant downward departure from the 384 required parking spaces.


275

Millington also sought a variance concerning the minimum 50-foot buffer widthrequired by the Township buffer ordinance. Millington requested approval of a9.12-foot buffer for the existing structure, and a buffer of less than 50 feetbetween the new building and the adjacent property line.

Denied. A conforming buffer of at least 50 feetwas provided for the new building.

276

Millington’s site plans included a 25-by-100-foot infiltration basin within 30 feetof the adjacent property line (i.e., within a 50-foot buffer area). The ZoningBoard did not require Millington to demonstrate that construction of theinfiltration basin in the buffer area was essential to Millington’s plan. The ZoningBoard granted the requested buffer variance.


277

Millington also sought a variance concerning the parking lot screening required bythe Township screening ordinance. In the Zoning Board resolution grantingpreliminary and final site plan approval, the Zoning Board noted that “someparking [is] not being screened in accordance with the Ordinance requirements”and that this condition would continue. The Zoning Board did not requireMillington to submit a landscaping plan with a cross-sectional view of theproposed screening. It nonetheless granted Millington’s requested screeningvariance.


278

Township Planner Peter Messina’s review letter concerning Millington’s plansnoted that “[t]he proposed building is to be accessed through the existing churchparking lot.” The Zoning Board did not require Millington to submit a writtenplan demonstrating that pedestrians could traverse the parking lot safely.






279

In sum, with respect to Millington’s 2007 application, the Zoning Board treatedMillington differently and better than the Planning Board treated ISBR, includingin the following ways:• The Zoning Board granted Millington’s request for a variance concerning therequired number of parking spaces. In granting this variance, the Zoning Boardtook into account alternative parking arrangements. The Planning Board did notgrant ISBR such relief.• The Zoning Board granted Millington’s request for a variance concerning the50-foot buffer requirement and permitted Millington to construct a largeinfiltration basin in its buffer area. In contrast, the Planning Board did not permitISBR to construct a detention basin in its buffer area.• The Zoning Board granted Millington’s request for a variance concerningparking lot screening, while the Planning Board cited ISBR’s inadequate parkinglot screening as a basis for denial of its application.• The Zoning Board did not require Millington to submit a landscaping plan with across-sectional view, while the Planning Board cited ISBR’s failure to do so as abasis for denial of its application.• The Zoning Board did not require Millington to submit a written plandemonstrating that pedestrians could traverse the parking lot safely, while thePlanning Board cited ISBR’s failure to do so as a basis for denial of itsapplication.

It is denied that the Zoning Board treatedMillington differently and better than thePlanning Board treated ISBR.

280Liberty Corner Presbyterian Church (“LCPC”) is located at 45 Church Street in aresidential zone.

Admitted, except that a small portion of theChurch is in the B-4 business zone.

281

In or around 2000, LCPC submitted an application to the Board seekingpreliminary site plan approval for an expansion of its facility. On October 3,2000, the Board granted preliminary site plan approval, less than 10 months aftersubmission. As a condition of approval, the Board required a number of changesto LCPC’s site plan, subject to approval by the Township Engineer. The Boardalso permitted LCPC to construct or maintain parking facilities, driveways, and/ordrainage improvements in its 50-foot buffer area adjacent to residential uses.






282

In sum, with respect to LCPC’s application, the Board treated LCPC differentlyand better than ISBR, including in the following ways:• The Board delegated approval of LCPC’s site plan revisions to the TownshipEngineer, while in ISBR’s case the Board refused to do so.• The Board permitted LCPC to construct or maintain parking facilities,driveways, and/or drainage improvements in the 50-foot buffer area. In ISBR’scase, the Board cited the proposed buffer incursion as a basis for denial of theapplication.

It is denied that the Board treated LCPCdifferently and better than ISBR.

283

The Pingry School (“Pingry”) is located at 131 Martinsville Road in a residentialzone. In or around 2014, Pingry applied to the Zoning Board for preliminary andfinal site plan approval, together with variance relief, in connection with proposedimprovements to an existing private school, including an athletic complex. OnApril 8, 2015, the Zoning Board granted preliminary and final site plan approvaland variance relief after only two public hearings on the application.


284

As part of its application, Pingry requested several variances and exceptions,including multiple variances relating to its inability to meet the conditional usecriteria set forth in Ordinance # 2242. The Zoning Board acknowledged thatPingry’s conditional use was being “intensified.” The Zoning Board nonethelessgranted the necessary variances on the grounds that the school was an “inherentlybeneficial use.”


285

Pingry requested a variance “permitting less screening for recreation and parkingareas than is required by [Ord.] Sections 21-28 and 21-43.” The Zoning Boardgranted that variance. As a condition of final approval, the Zoning Board alsopermitted Pingry to resolve landscape screening issues during a subsequent reviewby its landscaping committee.


286

Pingry submitted a fire service plan along with its site plan. The Zoning Boardand the Township fire officials did not require Pingry’s fire service plan todemonstrate that the Township’s fire trucks could circumnavigate the entireparking area. Nor was Pingry required to designate fire lanes prior to obtainingsite plan approval. Rather, in a letter dated March 2, 2015, Fire Official JanetLake stated that “[f]ire lanes will be designated after the construction of roadwaysand access areas by the Fire Official in conjunction with the Liberty Corner FireCompany.”






287

The Zoning Board did not apply the requirements of NFPA 1141 to Pingry’s siteplan. Rather, in a letter dated December 23, 2014, the Township Engineeracknowledged that 24-foot parking aisles were required, in accordance with Ord.§ 21-39.3.


288The Zoning Board did not require Pingry to submit a written plan demonstratingthat students could be dropped off safely.

Admitted, but the question of whether studentscould be dropped off safely was not an issuewith this project.

289

The Zoning Board approved Pingry’s drainage plan on the condition that Pingrywould make several amendments proposed by the Township Engineer. TheZoning Board further noted that, “in the event the removal of bedrock cannot beeffectuated [Pingry] shall revise the drainage plans to the satisfaction of theTownship Engineer.” In other words, the Zoning Board recognized that Pingrymay need to revise its drainage plans due to site conditions. The Zoning Boardnonetheless granted final site plan approval, delegating the authority to approveany drainage plan revisions to the Township Engineer.






290

In sum, with respect to Pingry’s application, the Zoning Board treated Pingrydifferently and better than the Planning Board treated ISBR, including in thefollowing ways: • The Zoning Board granted Pingry several variances in order topermit an intensification of its non-compliant conditional use, whereas thePlanning Board did not approve ISBR’s application for a permitted use. • TheZoning Board granted Pingry a variance to permit inadequate screening of itsparking lot. In addition, the Zoning Board permitted Pingry to work with thelandscaping committee after approval to improve its screening. The PlanningBoard did not give ISBR this option and, instead, cited ISBR’s proposedscreening as a basis for the denial of its application.• The Zoning Board did notrequire Pingry to provide a fire service plan demonstrating that fire trucks couldcircumnavigate its parking lot or require Pingry to designate fire lanes prior toobtaining site plan approval. In contrast, the Planning Board did impose suchrequirements on ISBR.• The Zoning Board did not apply the requirements ofNFPA 1141 to Pingry’s application, whereas the Planning Board did apply thoserequirements to ISBR’s application. • The Zoning Board did not require Pingry tosubmit a written plan demonstrating safe drop-off procedures for students, whilethe Planning Board cited ISBR’s alleged failure to do so as a basis for the denialof its application.• The Zoning Board granted final site plan approval to Pingry,even though Pingry had yet to make several required amendments to its drainageplan. The Zoning Board further delegated approval of Pingry’s drainage planamendments to the Township Engineer. In contrast, the Planning Board deniedISBR’s application on the grounds that drainage plan amendments were required,and the Board refused to delegate approval of such amendments to its engineer.

It is denied that the Zoning Board treated Pingrydifferently and better than the Planning Boardtreated ISBR.

291

The Basking Ridge Animal Hospital (“Hospital”) is located at 340 South FinleyAvenue in a residential zone. On or around January 29, 2013, the Hospitalapplied to the Zoning Board for preliminary and final site plan approval, togetherwith variance relief, in connection with the proposed expansion of an existinganimal hospital. On April 9, 2014, the Zoning Board granted preliminary andfinal site plan approval and variance relief after two public hearings on theapplication.






292

As part of its application, the Hospital requested several exceptions, including anexception from the requirement of Ord. § 21-39.3(a)(5) of having 24-foot parkingaisles for 90 degree parking stalls. Instead, the Hospital proposed a 20-footparking aisle for two of its 90 degree parking stalls, and a 12-foot parking aisle forfive other 90-degree parking stalls. The Zoning Board granted this exception onthe grounds that “literal enforcement would be impracticable or exact unduehardship upon the Applicant due to the size of the Site and the location andconfiguration of the structures lawfully thereon.”


293

The Zoning Board resolution approving the Hospital’s application noted that theproperty had an 18-foot-wide fire lane in front of the main structure. The ZoningBoard did not apply the more stringent requirements of NFPA 1141 to theHospital’s application.


294

As a condition of approval, the Zoning Board allowed the Hospital to provideadditional landscape screening in the 50-foot buffer area adjacent to neighboringresidents, subject to consultation with neighboring residents concerning theappropriate landscaping.


295

As a condition of approval, the Zoning Board required the Hospital “to providecalculations confirming the proposed average illumination of vehicular andpedestrian areas does not exceed 0.9fc, which is the maximum permitted pursuantto Section 21-41.3 of the Land Development Ordinance.”






296

In sum, with respect to the Hospital’s application, the Zoning Board treated theHospital differently and better than the Planning Board treated ISBR, including inthe following ways:• The Zoning Board permitted an exception from the Township ordinancerequirements concerning parking aisle width. The Planning Board held ISBR tostandards that exceeded those of the Township ordinance.• The Zoning Board did not apply the stricter requirements of NFPA 1141 to theHospital’s application, whereas the Planning Board did apply those requirementsto ISBR’s application.• The Zoning Board permitted the Hospital to work with local residents afterapproval to ensure the adequacy of the landscaping screen. The Planning Boarddid not give ISBR this option and, instead, cited ISBR’s proposed landscapingscreen as a basis for the denial of its application.• The Zoning Board did not require the Hospital to provide any plansdemonstrating that the Hospital satisfied the requirements of the site lightingordinance prior to granting site plan approval. And it permitted the Hospital touse lighting up to the maximum limit contained in the ordinance. In contrast, thePlanning Board faulted ISBR’s plan for proposing average illumination levels of0.7 and 0.81 footcandles, figures that conform to the Township ordinance’slighting requirements.

It is denied that the Zoning Board treated theHospital differently and better than the PlanningBoard treated ISBR.

297

The Albrook School (“Albrook”) is a private school located at 361 SomervilleRoad in the same residential zone as ISBR’s Property. Albrook submitted threeapplications to the Board seeking site plan approvals in or around 1987, 1994, and1997. The Board approved those applications. The Board’s 1987, 1994, and 1997approvals granted variances to Albrook concerning both parking setbacks and therequired number of parking spaces. With respect to Albrook’s site planapplications, the Board treated Albrook differently and better than ISBR. Whilethe Board granted Albrook a variance from the required number of parkingspaces, it did not grant such relief to ISBR.

It is admitted that Albrook is a private schoollocated at 361 Somerville Road in the sameresidential zone as ISBR’s property. It isadmitted that Albrook submitted threeapplications to the Board seeking site planapprovals in 1987, 1994 and 1997. It is admittedthat the Board approved these applications. It isdenied that the Board’s 1987, 1994 and 1997approvals granted variances to Albrookconcerning both parking setbacks and therequired number of parking spaces. It is deniedthat the Board treated Albrook differently andbetter than ISBR. As to the last sentence in theparagraph, it is denied because ISBR did notrequest similar relief.





298

Dr. Kiyosha Watts Yorio’s property is located at 3080 Valley Road in aresidential zone. On or around March 11, 2005, Dr. Yorio submitted anapplication seeking conditional use approval for a home medical office in asingle-family home. On August 2, 2005, the Board approved the conditional useafter one public hearing on the application. In assessing Dr. Yorio’s proposednumber of parking spaces, the Board applied the parking ratio set forth in theTownship ordinance for medical offices: “1 space for each 200 square feet.” TheBoard did not perform an individualized analysis of Dr. Yorio’s actual parkingneed. Instead, the Board approved Dr. Yorio’s parking proposal.

Dr. Yorio’s property is no longer located at 3080Valley Road. His application was submitted onMarch 2, 2005. It is admitted that on August 2,2005, the Board approved the conditional useafter one public hearing on the application. It isdenied that in accessing Dr. Yorio’s proposednumber of parking spaces, the Board applied theparking ratio set forth in the Township ordinancefor medical offices. The Board applied the homeoffice requirement of one space for 200 squarefeet of office space. It is admitted that the Boarddid not perform an individualized analysis of Dr.Yorio’s actual parking need and approved hisproposal.

299Dr. Yorio also proposed a 5-foot-high fence to screen the parking area from theadjacent residents. The Board approved this proposal as well.

It is admitted that the allegations in thisparagraph are correct.

300

In sum, with respect to Dr. Yorio’s application, the Board treated Dr. Yoriodifferently and better than ISBR, including in the following ways: • The Boardapproved a parking calculation based upon the applicable ratio set forth in theParking Ordinance, and it did not perform an individualized inquiry into Dr.Yorio’s parking need. • The Board approved a fence as a screen.

It is denied that the Board treated Dr. Yoriodifferently and better than ISBR.

301

Accordingly, the Township, through the Planning and Zoning Boards, hashistorically accorded more favorable treatment to both religious and secularinstitutions than was accorded to ISBR on issues including screening, bufferincursions, parking, circulation, stormwater, and lighting.

Denied.

L. Defendants Have Precluded ISBR from Developing Its Land for Religious Purposes

302

As a result of the Township’s new ordinance, Ordinance # 2242, ISBR cannotnow successfully reapply to the Board for site plan approval on its Property as amatter of right. Further, as a result of the expenses incurred before the Board andthe changes required to its site plan since its initial application, ISBR does nothave funds that could be used to purchase a new property, begin the siteapplication process anew, and then develop the property, even if a propertycompliant with the new ordinance could be located. Due to Defendant’sdiscriminatory intent and bad faith, further proceedings before the Board or anyagency of the Township would be futile.

It is denied that as a result of the new ordinance,ISBR cannot now successfully reapply to theBoard for site plan approval. After reasonableinvestigation, the defendants remain withoutsufficient information to admit or denyallegations concerning expenses incurred by theplaintiffs.





303

ISBR has made and continues to make payments on a mortgage for the Property,in addition to maintenance costs arising from the Property, despite ISBR’sinability to put the Property to its intended and, at the time of purchase, permitteduse.


304

ISBR also continues to incur expenses, including the costs of renting space forFriday prayers and for its Sunday School, which it would no longer be incurringhad the Board granted timely approval and permitted construction of the ISBRmosque.


305ISBR has spent at least $450,000 in its efforts to obtain approval of its site planfrom the Board, which is far in excess of expenses typically and customarilyincurred by applicants seeking approval of site plans comparable to ISBR’s.


306Due to the delay and lack of approval, ISBR has lost commitments of donationsand other donations that it would have received in the event of timely approval.


307

The Board’s discriminatory denial of ISBR’s application for site plan approvalseverely inhibits the ability of ISBR and its congregation to fully and freelypractice their Islamic faith. ISBR’s application would not have been denied butfor the religion of its members. Further, the Board’s denial of ISBR’s applicationfor site plan approval places substantial pressure on ISBR and its congregation tomodify their intention to build a much-needed permanent house of worship wherethey can fully enjoy their right to practice their faith.


FIRST CAUSE OF ACTIONViolation of the Religious Land Use and Institutionalized Persons Act of 2000

42 U.S.C. § 2000cc(a) – “Substantial Burden”(Against All Defendants)

308Plaintiffs reallege and incorporate by reference paragraphs 1 through 307. The answers to the allegations in paragraphs 1

through 307 are repeated as if set forth fully atlength herein.

309

Section 2(a) of RLUIPA prohibits any government from imposing orimplementing land use regulations in a manner that imposes a substantial burdenon the religious exercise of a person, including a religious assembly or institution,unless the government demonstrates that imposition of the burden on that person,assembly, or institution is in furtherance of a compelling governmental interestand is the least restrictive means of furthering that compelling governmentalinterest.

It is admitted that the plaintiffs accuratelysummarize Section 2(a) of RLUIPA.





310

Defendants have deprived and continue to deprive Plaintiffs of their rights to freeexercise of religion, as secured by RLUIPA, by imposing and implementing landuse regulations that place a substantial burden on their religious exercise without acompelling governmental interest and without using the least restrictive means ofachieving any interest.

Denied.

311Plaintiffs have suffered damages as a result of the improper actions of theTownship Committee, the Board, the Township, and the individual Defendants inviolation of RLUIPA.

Denied.

312 Plaintiffs are entitled to declaratory and injunctive relief. Denied.

313Defendants are liable to Plaintiffs for damages in an amount to be determined attrial.

Denied.

SECOND CAUSE OF ACTIONViolation of the Religious Land Use and Institutionalized Persons Act of 2000

42 U.S.C. § 2000cc(b)(1) – “Equal Terms”(Against All Defendants)



315Section 2(b)(1) of RLUIPA prohibits any government from imposing orimplementing land use regulations in a manner that treats a religious assembly orinstitution on less than equal terms with a nonreligious assembly or institution.

It is admitted that the plaintiffs accuratelysummarize Section 2(b)(1) of RLUIPA.

316

Defendants have violated RLUIPA by implementing land use regulations in amanner that treated Plaintiffs on less than equal terms than similarly situatedsecular organizations that have sought approval from Township agencies orofficials. Among other things, Defendants denied Plaintiffs’ application to build amosque on bases that had not been applied adversely to similarly situated secularinstitutions. Such unequal treatment of Plaintiffs violates the equal termsprovision in Section 2(b)(1) of RLUIPA. 42 U.S.C. § 2000cc(b)(1).

Denied.

317Plaintiffs have suffered damages as a result of the illegal actions of the TownshipCommittee, the Board, the Township, and the individual Defendants in violationof RLUIPA.

Denied.



Denied.




Para. Complaint AnswerTHIRD CAUSE OF ACTION

Violation of the Religious Land Use and Institutionalized Persons Act of 200042 U.S.C. § 2000cc(b)(2) – “Non-Discrimination”

(Against All Defendants)



321Section 2(b)(2) of RLUIPA prohibits any government from imposing orimplementing land use regulations in a manner that discriminates against anyassembly or institution on the basis of religion or religious denomination.

It is admitted that the plaintiffs accuratelysummarize Section 2(b)(2) of RLUIPA.

322

Defendants have violated RLUIPA, by implementing land use regulations in amanner that intentionally discriminates against Plaintiffs on the basis of religion.Among other things, Defendants exercised their zoning powers to deny Plaintiffs’application to build a mosque because it would have been a Muslim house ofworship and on the basis of community opposition grounded in anti-Muslimanimus. In addition, Defendants enacted a zoning ordinance aimed at establishingstandards for Plaintiffs’ proposed development different than those that have beenapplied to similar proposed land uses by non-Muslim houses of worship and bysecular property owners. Such disparate treatment of Plaintiffs’ applicationviolates the anti-discrimination provision in Section 2(b)(2) of RLUIPA. 42U.S.C. § 2000cc(b)(2).

Denied.

323Plaintiffs have suffered damages as a result of the unlawful actions of theTownship Committee, the Board, the Township, and the individual Defendants inviolation of RLUIPA.

Denied.



Denied.

FOURTH CAUSE OF ACTIONViolation of the Religious Land Use and Institutionalized Persons Act of 2000

42 U.S.C. § 2000cc(b)(3)(B) – “Unreasonable Limitations”(Against the Township, the Township Committee, and all individual Defendants who are members of the Township

Committee in their official capacity)

326Plaintiffs reallege and incorporate by reference paragraphs 1 through 325. The answers to the allegation of paragraphs 1






327Section 2(b)(3)(B) of RLUIPA prohibits any government from imposing orimplementing land use regulations in a manner that unreasonably limits religiousassemblies, institutions, or structures within a jurisdiction.

The defendants admit that the plaintiffsaccurately summarize Section 2(b)(3)(b)ofRLUIPA.

328

Defendants have violated RLUIPA, by imposing and implementing a land useregulation, to wit, Ordinance # 2242, passed by the Township Committee onOctober 15, 2013, which revised Ordinance § 21-12.3(f). The amended ordinanceprovision unreasonably limits religious assemblies, institutions, or structureswithin the Township.

Denied.

329Plaintiffs have suffered damages as a result of the improper actions of theTownship Committee, the Board, the Township, and the individual Defendants inviolation of RLUIPA.

Denied.



Denied.

FIFTH CAUSE OF ACTIONViolation of the United States Constitution

Free Exercise of Religion: First and Fourteenth Amendments42 U.S.C. § 1983


332Plaintiffs reallege and incorporate by reference paragraphs 1 through 331. The answers to the allegations of paragraphs 1


333The First Amendment of the United States Constitution, as incorporated throughthe Fourteenth Amendment, prohibits a state or any political subdivision thereoffrom prohibiting the free exercise of religion (the “Free Exercise Clause”).

The defendants admit that the plaintiffsaccurately summarize the ConstitutionalAmendments referred to in this paragraph.

334

In committing the acts alleged above, the Board, the Township Committee, theTownship, and the individual Defendants were acting under color of state law.

The extent the plaintiffs mean to imply in thisparagraph that the defendants violated the Firstor Fourteenth Amendments, the allegations aredenied.





335

The actions of the Board, the Township Committee, the Township, and theindividual Defendants have violated and continue to violate Plaintiffs’ rightsunder the Free Exercise Clause by imposing a substantial burden upon thereligious exercise of Plaintiffs and by intentionally discriminating againstPlaintiffs on the basis of religious belief. The substantial burden has beenimposed by the discriminatory and arbitrary denial of Plaintiffs’ application forsite plan approval through the discretionary enforcement of a system ofregulations that allows for individualized assessments of land use proposals.

Denied.

336Defendants discriminated against Plaintiffs by denying Plaintiffs’ application forsite plan approval and passing Ordinance # 2242 based on discriminatory animustowards Plaintiffs’ religion.

Denied.

337Plaintiffs have suffered injury as a result of the illegal and unconstitutional actionsof the Board, the Township Committee, the Township, and the individualDefendants.

Denied.

338Plaintiffs are entitled to a declaratory judgment that the Defendants’ conduct hasviolated their First and Fourteenth Amendment rights.

Denied.

339 Plaintiffs are entitled to injunctive relief. Denied.


Denied.

SIXTH CAUSE OF ACTIONViolation of the New Jersey Constitution

Free Exercise of Religion: Article I, Paragraph 3N.J.S.A. § 10:6-2




342Article I, Paragraph 3 of the New Jersey Constitution guarantees the free exerciseof religion.

Admitted





343

The actions of the Board, the Township Committee, the Township, and theindividual Defendants have violated and continue to violate Plaintiffs’ rightsunder the New Jersey Constitution by imposing a substantial burden upon thereligious exercise of Plaintiffs and by intentionally discriminating againstPlaintiffs on the basis of religious belief. The substantial burden has beenimposed by the discriminatory and arbitrary denial of Plaintiffs’ application forsite plan approval through the discretionary enforcement of a system ofregulations that allows for individualized assessments of land use proposals.

Denied

344Defendants discriminated against Plaintiffs by denying Plaintiffs’ application forsite plan approval and passing Ordinance # 2242 based on discriminatory animustowards Plaintiffs’ religion.

Denied

345 Plaintiffs have suffered injury as a result of Defendants’ illegal actions. Denied

346Under N.J.S.A. § 10:6-2, Plaintiffs are entitled to declaratory and injunctive relief,as well as civil damages and fines from Defendants.

Denied

SEVENTH CAUSE OF ACTIONViolation of the United States ConstitutionFourteenth Amendment: Equal Protection

42 U.S.C. § 1983(Against All Defendants)



348The Equal Protection Clause of the Fourteenth Amendment of the United StatesConstitution prohibits a state or any political subdivision thereof from denying toany person within its jurisdiction the equal protection of the laws.

Admitted.

349

In committing the acts alleged above, the Board, the Township Committee, theTownship, and the individual Defendants were acting under color of state law.

To the extent the plaintiffs mean to imply in thisparagraph that the defendants violated the EqualProtection Clause of the Fourteenth Amendment,the allegation is denied.





350

The actions of the Board, the Township Committee, the Township, and theindividual Defendants have violated and continue to violate Plaintiffs’ rightsunder the Equal Protection Clause by intentionally treating Plaintiffs differentlyfrom other entities on the basis of religious belief. Among other things,Defendants implemented the Township’s zoning ordinance in a manner thatintentionally discriminated on the basis of Plaintiffs’ religion and was differentand substantially more burdensome than the implementation of the Township’szoning ordinance as to other religious or secular organizations. Defendants alsopassed Ordinance # 2242 for the purpose of preventing Plaintiffs from practicingtheir religion in a house of worship within the Township.

Denied.

351Plaintiffs have suffered injury as a result of the actions of the Board, the TownshipCommittee, the Township, and the individual Defendants in violation of the EqualProtection Clause.

Denied.

352Plaintiffs are entitled to a declaratory judgment that the Defendants’ actions haveviolated Plaintiffs’ rights under the Equal Protection Clause.

Denied.

353Plaintiffs are entitled to injunctive relief mandating that Plaintiffs’ application forsite plan approval be granted forthwith.

Denied.

354Defendants are liable in damages to Plaintiffs in an amount to be determined attrial.

Denied.

EIGHTH CAUSE OF ACTIONViolation of the United States Constitution

Fourteenth Amendment: Due Process42 U.S.C. § 1983




356

The Due Process Clause of the Fourteenth Amendment prohibits statutes that failto provide people of ordinary intelligence a reasonable opportunity to understandthe conduct governed by the statute as well as statutes that authorize or encouragearbitrary and discriminatory enforcement. Further, under Supreme Courtprecedent interpreting the Due Process Clause, statutes must provide explicitstandards for those who apply them to avoid resolution on an ad hoc andsubjective basis, with the attendant dangers of arbitrary and discriminatoryapplication.

To the extent the plaintiffs mean to imply in thisparagraph that the defendants violated the DueProcess Clause of the Fourteenth Amendment,the allegation is denied.





357

Township Ord. § 21-22.1 provides as follows:The development plan shall show the total number of off-street parking spacesrequired for the use or combination of uses indicated in the application. Theschedule below represents standards acceptable to the Township. It is the intent ofthis chapter to provide for parking demand by requiring off-street parking exceptas noted for residential development. Since a specific use may generate a parkingdemand different from those enumerated below, documentation and testimonyshall be presented to the Board as to the anticipated parking demand. Based uponsuch documentation and testimony, the Board may:(a) Allow construction of a lesser number of spaces, provided that adequateprovision is made for construction of the required spaces in the future.(b) In the case of nonresidential uses, require that provision be made for theconstruction of spaces in excess of those required hereinbelow, to ensure that theparking demand will be accommodated by off-street spaces. (Emphasis added.)

It is admitted that the plaintiffs accurately quotethe ordinance.

358

The portions of Township Ord. § 21-22.1 that are italicized above violate the DueProcess Clause of the Fourteenth Amendment. These parts of Township Ord. §21-22.1 fail to provide members of the public, including Plaintiffs, a reasonableopportunity to ascertain the number of parking spaces required for a particularuse, including mosques; authorize arbitrary and discriminatory enforcement by theBoard with respect to the parking spaces required for a particular use, includingmosques; and do not provide explicit standards for the Board to avoid resolutionon an ad hoc and subjective basis. The constitutional flaws in these portions ofTownship Ord. § 21-22.1 resulted in an arbitrary and discriminatory applicationwith respect to Plaintiffs. Specifically, the Board did not apply the 3:1 parkingratio set forth in the ordinance and instead undertook an “individualized analysis”that resulted in the Board’s finding that Plaintiffs must provide 107 parking spacesfor the proposed mosque. In committing the acts alleged above, the Board, theTownship Committee, the Township, and the individual Defendants were actingunder color of state law.

Denied.





359

The portions of Township Ord. § 21-22.1 italicized above are severable from theremainder of that provision under Township Ord. § 21-1.3, which reads asfollows:If any section, subsection or paragraph of this chapter shall be declared tobe unconstitutional, invalid or inoperative, in whole or in part, by a court ofcompetent jurisdiction, such section, subsection or paragraph shall, to the extentthat it is not unconstitutional, invalid or inoperative, remain in full force andeffect, and no such determination shall be deemed to invalidate the remainingsections, subsections or paragraphs of this chapter.

Denied.

360

Plaintiffs are entitled to a declaratory judgment that the portions of Township Ord.§ 21-22.1 italicized above violate the Due Process Clause of the FourteenthAmendment and that the portions of Township Ord. § 21-22.1, as italicized above,are severable from the remainder of the ordinance.

Denied.

361Plaintiffs are entitled to a declaratory judgment that the portions of Township Ord.§ 21-22.1 italicized above are void.

Denied.

NINTH CAUSE OF ACTIONNew Jersey Constitution

Article I, Paragraphs 1 & 5: Equal ProtectionN.J.S.A. § 10:6-2




363The New Jersey Constitution, Paragraphs 1 and 5, entitles all persons to equalprotection of the law (“State Equal Protection Clause”).

Admitted.

364

Defendants’ actions have violated and continue to violate Plaintiffs’ rights underthe State Equal Protection Clause by intentionally treating Plaintiffs differentlyfrom other entities on the basis of religious belief. Among other things,Defendants implemented the Township’s zoning ordinance in a manner thatintentionally discriminated on the basis of Plaintiffs’ religion and was differentand substantially more burdensome than the implementation of the Township’szoning ordinance as to other religious or secular organizations. Defendants alsopassed Ordinance # 2242 for the purpose of preventing Plaintiffs from practicingtheir religion in a house of worship within Bernards Township.

Denied.

365Plaintiffs have suffered injury as a result of the Defendants’ actions in violation ofthe State Equal Protection Clause.

Denied.





366Under N.J.S.A. § 10:6-2, Plaintiffs are entitled to a declaratory judgment that theDefendants’ actions have violated Plaintiffs’ rights under the State EqualProtection Clause.

Denied.

367Under N.J.S.A. § 10:6-2, Plaintiffs are entitled to injunctive relief mandating thatPlaintiffs’ application for site plan approval be granted forthwith.

Denied.

368368. Defendants are liable in damages to Plaintiffs in an amount to be determinedat trial.

Denied.

TENTH CAUSE OF ACTIONViolation of the New Jersey Constitution

Article I, Paragraph 1: Protection Against InjusticeN.J.S.A. § 10:6-2


369Plaintiffs reallege and incorporate by reference paragraphs 1 through 368. The answers to the allegations of paragraph 1


370

Article I, Paragraph 1 of the New Jersey Constitution provides that “[a]ll personsare by nature free and independent, and have certain natural and unalienablerights, among which are those of enjoying and defending life and liberty, ofacquiring, possessing, and protecting property, and of pursuing and obtainingsafety and happiness.” Under New Jersey Supreme Court Precedent, thisprovision seeks to protect against injustice and safeguard the principles of dueprocess.

It is admitted that the plaintiffs accurately quotefrom Article I, Paragraph 1 of the New JerseyConstitution. After reasonable investigation,, thedefendants are unable to admit or deny theallegation concerning what the plaintiffs refer toas New Jersey Supreme Court precedent.





371

Township Ord. § 21-22.1 provides as follows:The development plan shall showthe total number of off-street parking spaces required for the use or combinationof uses indicated in the application. The schedule below represents standardsacceptable to the Township. It is the intent of this chapter to provide for parkingdemand by requiring off-street parking except as noted for residentialdevelopment. Since a specific use may generate a parking demand different fromthose enumerated below, documentation and testimony shall be presented to theBoard as to the anticipated parking demand. Based upon such documentation andtestimony, the Board may:(a) Allow construction of a lesser number of spaces,provided that adequate provision is made for construction of the required spacesin the future.(b) In the case of nonresidential uses, require that provision be madefor the construction of spaces in excess of those required hereinbelow, to ensurethat the parking demand will be accommodated by off-street spaces. (Emphasisadded.)

The defendants admit the plaintiffs accuratelyquote from the ordinance.

372

The portions of Township Ord. § 21-22.1 that are italicized above violate ArticleI, Paragraph 1 of the New Jersey Constitution. These parts of Township Ord. §21-22.1 fail to provide members of the public, including Plaintiffs, a reasonableopportunity to ascertain the number of parking spaces required for a particularuse, including mosques; authorize arbitrary and discriminatory enforcement by theBoard with respect to the parking spaces required for a particular use, includingmosques; and do not provide explicit standards for the Board to avoid resolutionon an ad hoc and subjective basis. The constitutional flaws in these portions ofTownship Ord. § 21-22.1 resulted in an arbitrary and discriminatory applicationwith respect to Plaintiffs. Specifically, the Board did not apply the 3:1 parkingratio set forth in the ordinance and instead undertook an “individualized analysis”that resulted in the Board’s finding that Plaintiffs must provide 107 parking spacesfor the proposed mosque.

Denied.





373

The portions of Township Ord. § 21-22.1 italicized above are severable from theremainder of that provision under Township Ord. § 21-1.3, which reads asfollows:If any section, subsection or paragraph of this chapter shall be declared to beunconstitutional, invalid or inoperative, in whole or in part, by a court ofcompetent jurisdiction, such section, subsection or paragraph shall, to the extentthat it is not unconstitutional, invalid or inoperative, remain in full force andeffect, and no such determination shall be deemed to invalidate the remainingsections, subsections or paragraphs of this chapter.

Denied.

374

Plaintiffs are entitled to a declaratory judgment that the portions of Township Ord.§ 21-22.1, as italicized above, violate Article I, Paragraph 1 of the New JerseyConstitution, and that the portions of Township Ord. § 21-22.1, as italicizedabove, are severable from the remainder of the ordinance.

Denied.

375Plaintiffs are entitled to a declaratory judgment that the portions of Township Ord.§ 21-22.1 italicized above are void.

Denied.

ELEVENTH CAUSE OF ACTIONNew Jersey Municipal Land Use Law

Arbitrary, Capricious, or Unreasonable Land Use Decision(N.J.S.A § 40:55D-1, et seq.; Medici v. BPR Co., 107 N.J. 1 (1987))

(Against Defendant Board)



377

N.J.S.A. § 40:55D-1, et seq., and New Jersey common law, see, e.g., Medici v.BPR Co., 107 N.J. 1 (1987), prohibit a municipal land use board from exercisingits land use powers in a manner that is arbitrary, capricious, or unreasonable andnot supported by substantial evidence.

Admitted.

378

The actions of Defendant Board in hearing and denying Plaintiffs’ application forpreliminary and final site plan approval were arbitrary, capricious, andunreasonable and not supported by substantial evidence. Moreover, theinstructions and legal rules supplied to the Board to guide its deliberations werearbitrary, capricious, and unreasonable as a matter of law in that they providedlegal standards that were inconsistent with the MLUL and case law thereunder.

Denied.

379Plaintiffs have suffered injury as a result of the unlawful actions of DefendantBoard.

Denied.





380Under N.J.S.A. § 40:55D-1, et seq., and New Jersey common law, see, e.g.,Medici v. BPR Co., 107 N.J. 1 (1987), Plaintiffs are entitled to declaratory andinjunctive relief against Defendant Board’s Resolution denying their application.

Denied.


EXHIBIT 2






EXHIBIT 3


MEMO

TO: Bernards Township Planning Board (the “Board”)

COPY: Vincent T. Bisogno, attorney for applicant Islamic Society of Basking Ridge (“ISBR”)

Robert F. Simon, attorney for objector Bernards Township Citizens for Responsible

Development (“BTCRD”)

FROM: Jonathan E. Drill, Esq., Board Attorney

David Banisch, PP, AICP, Board Planner

DATE: January 3, 2013

RE: ISBR Application – Off-Street Parking Requirement

Introduction and Purpose of Memo

As the Board is well aware, one of the principal issues that must be decided in the ISBR

application is the off-street parking requirement applicable to the proposed development. By email

dated December 3, 2012, ISBR’s attorney, Mr. Bisogno, requested to know the Board’s expert’s views

on the parking requirement prior to the resumption of the hearing on the application scheduled for

January 8, 2013. By email dated December 7, 2012, I invited both Mr. Bisogno and objector BTCRD’s

attorney, Mr. Simon, to submit their respective positions on the issues to me and to Mr. Banisch, after

which Mr. Banisch and I would prepare and submit a joint memo to the Board containing our legal and

planning opinions on the issues. Mr. Bisogno submitted ISBR’s position in a letter dated December 14,

2012, and Mr. Simon submitted BTCRD’s position in a letter dated December 21, 2012, copies of which

are attached. The within memo contains Mr. Banisch’s and my planning and legal opinions as to the

off-street parking issues.

Ordinance Standard v. Requirement

Our analysis begins with the Township ordinance at issue, specifically, zoning ordinance

section 21-22.1.a.1, which governs the required number of off-street parking spaces that must be

provided in a development. Ordinance section 21-22.1.a.1 provides:


Memo to the Board from Jonathan E. Drill, Esq. and David Banisch, PP, AICP

ISBR Application – Off-Street Parking Requirement

January 3, 2013 -- Page 2 of 8

The development plan shall show the total number of off-street parking spaces

required for the use . . . indicated in the application. The schedule below

represents standards acceptable to the Township. It is the intent of this chapter to

provide for parking demand by requiring off-street parking except as noted for

residential development. Since a specific use may generate a parking demand

different from those enumerated below, documentation and testimony shall be

presented to the Board as to the anticipated parking demand. Based upon such

documentation and testimony, the Board may (a) Allow construction of a lesser

number of spaces, provided that adequate provision is made for construction of

the required spaces in the future, (b) In the case of nonresidential uses, require

that provision be made for the construction of spaces in excess of those required

hereinbelow, to ensure that the parking demand will be accommodated by off-

street spaces.

We believe that ISBR’s focus on the off-street parking standard listed in the schedule for

a “church” – 1 parking space for every 3 seats, which ISBR contends should be applied in this

application as 1 parking space for every 3 worshippers – is misplaced and that ISBR’s argument – that a

mosque use must be judged under the parking standard listed in the schedule for a “church” use by

reason of both mosques and churches being “houses of worship” – misses the point of the ordinance.

First, the off-street parking standard listed in the schedule for a “church” is not the off-

street parking “requirement” for a proposed church. It is merely a “standard” to be considered by the

Board in the course of the hearing on an application for development for a proposed church, with the

actual off-street parking “requirement” for the proposed development to be determined by the Board

based on “documentation and testimony . . . presented to the Board as to the anticipated parking

demand” for the particular church being proposed. Contrary to the statement contained in the first full

paragraph following the chart on page 3 in Mr. Bisogno’s December 14th

letter, the Township has not

fixed the parking requirement at 1 space for every 3 seats. Second, by its express terms, the particular

parking standard at issue here, “1 space for every 3 seats or 1 space for every 24 linear inches of pew

space,” is not applicable to mosques or, for that matter, to “houses of worship.” By its express terms,

this standard applies only to “churches,” “auditoriums” and “theaters.”





As a matter of law, planning boards are not free to ignore or grant variances from zoning

ordinances just because the board (or, for that matter, an applicant) may disagree with the requirements

of the ordinance. Kaufmann v. Warren Township Planning Board, 110 N.J. 551, 564 (1988). When off-

street parking requirements are contained in a zoning ordinance, “the planning board is bound by them”

in undertaking its review of a site plan application. Wawa Food Market v. Ship Bottom Planning Board,

227 N.J. Super. 29, 36 (App. Div. 1988), certif. denied, 114 N.J. 299 (1988). Further, a planning board

may not substitute its judgment for that of the governing body when it comes to the language in, and the

application of, the ordinance. Terner v. Spyco, Inc., 226 N.J. Super. 532, 542 (App. Div. 1988).

Finally, when interpreting a zoning ordinance, the planning board must seek a reading that “justly

turn[s] on the breadth of the objectives of the legislation and the common sense of the situation.” New

Jersey Builders, Owners & Maintenance Association v. Blair, 60 N.J. 330, 339 (1972).

Here, we believe that the objective of the ordinance is clear. The ordinance recognizes

and expressly provides that “a specific use may generate a parking demand different from those

enumerated [in the schedule]” so that “documentation and testimony shall be presented to the Board as

to the anticipated parking demand” and, “[b]ased upon such documentation and testimony,” the Board

must determine the required number of off-street parking spaces that must be provided in a particular

development “to ensure that the parking demand will be accommodated by off-street spaces.” As such,

the law and the ordinance at issue require that the Board apply the ordinance as written and require that

the applicant submit documentation and testimony to the Board as to the anticipated parking demand for

the proposed mosque so that the Board can determine the required number of off-street parking spaces

that must be provided to ensure that the parking demand generated by the proposed mosque will be

accommodated by off-street parking spaces.





ISBR argues that the language of the ordinance does not provide “certainty and

definiteness” and does not contain “sufficient standards to prevent arbitrary and indiscriminate

interpretation or application” and, hence, the ordinance as written is illegal. As a matter of law,

however, the Board is not at liberty to ignore the express terms of the ordinance in face of a legal

challenge to the ordinance because the Board is not the forum before which the applicant may argue

illegality of an ordinance. House of Fire Christian Church v. Clifton Board of Adjustment, 379 N.J.

Super. 526, 541 (App. Div. 2005).

Applicable Off-Street Parking Standards

As set forth above in this memo, we believe that ISBR’s focus on the off-street parking

standard listed in the schedule for a “church” is misplaced, that the “church” parking standard of “1

space for every 3 seats” – which ISBR has interpreted as 1 space for every 3 worshippers – is not

applicable to mosques or, for that matter, to “houses of worship,” and that ISBR’s argument that a

mosque use must be judged under the parking standard listed in the schedule for a “church” use by

reason of both mosques and churches being “houses of worship” misses the point of the ordinance.1

As also set forth above in this memo, the law and the ordinance at issue require that the

Board apply the ordinance as written and require that the applicant submit documentation and testimony

to the Board as to the anticipated parking demand for the proposed mosque so that the Board can

determine the required number of off-street parking spaces that must be provided to ensure that the

parking demand generated by the proposed mosque will be accommodated by off-street parking spaces.

While we believe that ISBR must submit documentation and testimony to the Board during the hearing

1 Mr. Bisogno incorrectly implies in the first full paragraph on page 2 of his December 14

th letter that both Mr. Banisch, the

Board Planner, and David Schley, the Township Planner, have concluded that the “1 space for every 3 seats” standard should

be applied in this application. While both planners use this standard to arrive at parking space calculations, they have done

so to take issue with the calculations arrived at by ISBR. Neither of them has opined and/or concluded that the “1 space for

every 3 seats” standard is the standard that should be applied in this application.





before the Board can determine the off-street parking requirement in this application, we also believe it

is appropriate for us to offer our opinion prior to resumption of the hearing concerning the appropriate

parking standard(s) that should be considered and the calculation of the off-street parking requirement

under the applicable standard(s). To this end, we believe that the applicant must submit, and the Board

must consider, parking standards applicable to mosques published in any authoritative source.2

While not conceding that any parking standard other than “1 parking space for every 3

worshippers” applies to the proposed mosque, ISBR has provided for “informational purposes” a

number of different parking standards applicable to various types of houses of worship drawn from five

separate sources, all of which sources apparently are considered to be authoritative by ISBR’s traffic

engineering expert because this expert is the person who has identified the standards. See, page 2 of Mr.

Bisogno’s December 14th

letter (section B – “Other considerations”).

We note that all of the sources identified by ISBR, with the sole exception being ITE’s

publication titled “Parking Generation” (4th

Edition), are pre-2010 and do not include any differentiation

between churches, synagogues and mosques, which differentiation is identified in the fourth edition of

ITE’s Parking Generation, which was published in 2010.3 According to Parking Generation (4

th Ed.

2010), the fourth edition “represents a substantial change to the third edition, which was published in

2004.” See also, http://www.ite.org/emodules/scriptcontent/orders/ProductDetail.cfm?pc=IR-034C (last

checked December 30, 2012). One of the substantial changes is that “16 new land use classifications

have been added,” two of which are “Synagogue (561)” and “Mosque (562),” which reflects the ITE’s

2 We also believe that the Board should consider any parking studies specifically related to the proposed mosque that may be

submitted by the applicant or any other party, but that the applicant is not obligated to prepare and submit such a study

because such a study is not specifically required as part of the documentation that the applicant must submit under the

ordinance.

3 We note that Mr. Bisogno’s December 14

th letter neglects to identify the 2010 publication date of the fourth edition of ITE’s

Parking Generation and also neglects to identify the 1971 publication date of the Highway Research Board (HRB) Special

Report 125 titled “Parking Principles.”


http://www.ite.org/emodules/scriptcontent/orders/ProductDetail.cfm?pc=IR-034C




recognition that parking requirements for churches – “Churches (560) – should no longer apply to

synagogues and mosques, each of which generates its own distinctive traffic patterns and numbers so

each of which should now has its own distinctive parking requirements.4

We are of the opinion that all of the sources identified by ISBR, with the sole exception

being ITE’s Parking Generation (4th

Edition 2010), are out of date as relates to houses of worship and do

not represent the latest thinking and analysis by the traffic engineering profession.5 6 As such, unless

ISBR presents cogent reasons to the contrary, it is our opinion that the Board should reject all standards

submitted in Mr. Bisogno’s December 14th

letter other than the data contained in ITE’s Parking

4 Notwithstanding the implication contained in the first full paragraph on page 2 of Mr. Bisogno’s December 14

th letter to the

contrary, as a matter of law, similar uses can be treated differently under certain circumstances. As noted in Kozesnick v.

Montgomery Twp., 24 N.J. 154, 172 (1957), dissimilar treatment does not necessarily bespeak arbitrariness or

capriciousness. As held in Taxpayers Association of Weymouth, 80 N.J. 6, 37 (1979) constitutional equal protection does

not require that government treat all people and property identically. If involving non-fundamental rights, it requires only

that differences in treatment of persons or property similarly situated be justified on a non-irrational basis. Id. If involving

fundamental rights, it requires that differences in treatment be justified by a compelling government interest. Id. To begin

with, while a mosque use is similar to a church use in that both are houses of worship, there are differences between them in

terms of parking generation as evidenced by the data reported in the fourth edition of ITE’s Parking Generation that make

them dissimilar for purposes of this analysis. Further, even if the uses were considered similar for purposes of this analysis,

requiring different treatment in terms of off-street parking requirements is certainly rationally related to the differing parking

needs generated by each use. Finally, even assuming a fundamental right such as the constitutional right to practice one’s

religion is implicated here, differing parking requirements based on differing parking generation is justified by a compelling

government interest, namely local government’s duty to exercise its zoning and planning powers in a manner promoting the

public health, safety, morals, and general welfare. See, N.J.S.A. 40:55D-2a. However, it should be noted that all houses of

worship are treated the same under ordinance section 21-22.1.a.1 in that the same requirement is applied to all house of

worship applicants, indeed for all uses in the Township. Specifically, the ordinance requirement is submission of

documentation and testimony by all applicants for any and all uses proposed in the Township as to the anticipated parking

demand.

5 We note that Mr. Bisogno’s December 14

th letter fails to identify one additional parking requirement source of which we are

aware, namely, the American Planning Association’s publication titled “Planning and Urban Design Standards.” This source

was published in 2006 and includes a table titled “Recommended Parking Ratio Requirements” which lists the standard for

“Religious Centers” as 0.6 parking spaces per seat. It is possible Mr. Bisogno excluded this standard and source from his

letter because ISBR’s traffic engineering expert does not consider this an authoritative source since it is a planning

publication and not a traffic engineering publication. In any event, we are of the opinion that this parking standard should be

rejected because footnote 1 of the table in which it is listed indicates that the standard comes from the third edition of ITE

Parking Generation, not the fourth edition. As set forth above in the text of this memo, the fourth edition, which was

published in 2010, “represents a substantial change to the third edition, which was published in 2004.” As such, it is out of

date as relates to “religious centers” and does not represent the latest thinking and analysis by the traffic engineering

profession.

6 We note that Mr. Simon’s December 21, 2012 letter does not identify any parking requirement source other than the fourth

edition of ITE’s Parking Generation.





Generation (4th

Edition 2010), and the applicant and Board should use the parking generation data for

mosques – Mosques (562) – contained in ITE’s Parking Generation (4th

Edition 2010) to determine the

parking requirement for the proposed mosque in this application.7

Calculation of the Off-Street Parking Requirement

Using the data for Mosques (562) contained in the fourth edition of ITE’s Parking

Generation to calculate the parking requirement in this application is the last issue for consideration.

We recognize that the fourth edition of ITE’s Parking Generation is not the “be all end

all” for determining the off-street parking requirement in this application. As explained in the fourth

addition of ITE’s Parking Generation, the data reported for a given land use classification provide

averages, ranges, and statistical quality values that can help determine (1) the general nature of parking

demand for a given land use and (2) where a more detailed local study is needed. This is why land uses

where only one or two studies have been conducted are included in the publication. As also explained in

the fourth addition of ITE’s Parking Generation, the data alone presented in publication may not provide

accurate off-street parking requirements without the professional judgment and evaluation by a traffic

engineering expert.

Quite frankly, we believe that ISBR might do well to have a more detailed local study

related to the proposed mosque prepared and submitted to the Board. As set forth above, however,

ISBR is not obligated to prepare and submit such a study under the ordinance. In the absence of such a

7 ISBR’s traffic engineering expert testified during the last hearing session that ITE’s Parking Generation is an authoritative

source. As held in Jacober v. St. Peter’s Medical Center, 128 N.J. 475, 496 (1991), not only can an expert rely on a text in

formulating an opinion if the text is a “reliable authority,” but the text is admissible in its own right. A text will qualify as a

“reliable authority” if it “represents the type of material reasonably relied on by experts in the field.” Id. at 495. In

determining reliability, the “focus should be on what the experts in fact rely on, not on whether the court thinks they should

so rely.” Id. at 495-96. While not necessary to establish that ITE’s Parking Generation is an authoritative source, we note

that references to various editions of ITE Traffic Generation are contained in the following published cases: In re Proposed

Xanadu, 402 N.J. Super. 607, 635 (App. Div.), certif. denied, 197 N.J. 260 (2008); Eagle Group v. Hamilton Twp. Zoning





study, however, we believe that it is most appropriate for the Board to rely upon ITE’s Parking

Generation data to calculate the off-street parking requirement in this application.

As to use of the Parking Generation data, neither of us are traffic engineers but it is our

understanding that most traffic engineers use the “85th

percentile” data in calculating off-street parking

requirements for a particular proposed development, rather than “Average Peak Period Parking

Demand” data or the “33rd

percentile” data, to be appropriately conservative so as to reduce the risk of

actual parking generation during peak periods after development being higher than predicted and

provided for. It is our further understanding that ITE does not present “100th

percentile” data because

use of same in calculating off-street parking requirements for a particular proposed development would

result in production of an unnecessary number of parking spaces. Thus, unless ISBR presents cogent

reasons to the contrary, it is our opinion that the Board should use the “85th

percentile” data contained in

the fourth edition of ITE’s Parking Generation to calculate the off-street parking requirement for the

proposed mosque.

In conclusion, using the “85th

percentile” data (25.79 spaces for every 1,000 square feet

of gross floor area of the mosque), and multiplying it by 4.25 (the gross floor area of the proposed

mosque is 4,252 square feet), yields an off-street parking requirement of 110 spaces. It is our opinion

that, unless ISBR presents cogent reasons to the contrary and/or a more detailed local study related to

the proposed mosque leading to another conclusion, the Board should determine that the number of off-

street parking spaces required under zoning ordinance section 21-22.1.a.1 is 110 spaces.8

Board of Adj., 274 N.J. Super. 551, 558 (App. Div. 1994); and New Jersey Builders Ass’n v. Bernards Twp., 108 N.J. 223,

225 (1987).

8 Currently, ISBR’s site plan reflects 50 off-street parking spaces, less than half the number we believe to be required. Unless

ISBR revises the site plan to provide for 110 parking spaces, it is our opinion that ISBR will need to apply for a “c” variance

to allow this substantial deviation from the off-street parking requirement.


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